Affirmed and Memorandum Opinion filed April 19,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-05-00926-CV
____________
DARYL DWAYNE=20
SMITH, STACY SCHNELL, and ROSE MARY SMITH, Individually and for =
the Estate=20
of ROBERT W. SMITH, Deceased, =
Appellants
V.
CITY OF=20
GALVESTON, =
Appellee
On Appeal from the =
127th District Court
Harris County, =
Texas
Trial Court Cause =
No. 03-62090A
M E M O R=20
A N D U M O P I N I O N
Appellants,=20
Daryl Dwayne Smith, Stacy Schnell, and Rose Mary Smith, =
Individually and=20
for the Estate of Robert W. Smith, Deceased, are the surviving =
spouse and=20
children of Robert W. Smith. Appellants appeal the trial=20
court=3Ds granting=20
of the City of Galveston=3Ds plea to=20
the jurisdiction dismissing their wrongful death and survival=20
actions. We affirm.
In their=20
petition, appellants allege that Robert W. Smith was repeatedly =
exposed to=20
toxic and carcinogenic chemicals over a thirty-year career at the =
Port of=20
Galveston grain facility. They further claim this exposure =
caused=20
Smith to develop leukemia, which resulted in his death. =
Appellants=20
charge the City failed to take precautions to avoid, warn, or =
protect=20
Smith from such exposure.
The City=20
filed a plea to the jurisdiction arguing it is entitled to =
governmental=20
immunity and appellants=3D =
claims=20
are barred by the Texas Tort Claims Act. The trial court =
granted the=20
plea to the jurisdiction and dismissed appellants=3D =
claims=20
against the City.
Subject=20
matter jurisdiction is essential to the court=3Ds power to=20
decide a case. Texas Ass=3Dn of Bus.=20
v. Texas Air Control Bd., 852=20
S.W.2d 440, 443 (Tex. 1993). Whether a court has subject =
matter=20
jurisdiction is a question of law. Harris County v. =
Sykes,=20
136 S.W.3d 635, 638 (Tex. 2004).
A plea to=20
the jurisdiction challenges the court=3Ds subject=20
matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, =
34=20
S.W.3d 547, 554 (Tex. 2000). When a plea to the jurisdiction =
challenges the pleadings, we determine if the pleader alleged =
facts that=20
affirmatively demonstrate the court=3Ds=20
jurisdiction to hear the case. Texas =
Dep=3Dt of Parks=20
& Wildlife v. Miranda, 133=20
S.W.3d 217, 226 (Tex. 2004). We construe the pleadings in =
favor of=20
the plaintiffs and look to the pleaders=3D =
intent. Id. If the pleadings do not contain =
sufficient=20
facts to affirmatively demonstrate the trial court=3Ds=20
jurisdiction, but not affirmatively demonstrate incurable defects =
in=20
jurisdiction, the issue is one of pleading sufficiency and the =
plaintiffs=20
should have the opportunity to amend. Id. at =
226B27. =20
If the pleadings affirmatively negate the existence of =
jurisdiction, then=20
a plea to the jurisdiction may be granted without allowing the =
plaintiffs=20
an opportunity to amend. Id. at 227.
In their=20
first and second issues, appellants assert the trial court erred =
in=20
granting the City=3Ds plea to=20
the jurisdiction, holding that the operation of the Port of =
Galveston=20
constituted a governmental function. Article XII of the=20
City=3Ds Charter=20
provides the Port of Galveston is to be set aside as a =
Aseparate=20
utility@ =
from the=20
City as follows:
Section=20
1. Designation as a Separate Utility. The=20
Wharf and Terminal properties belonging to the City of Galveston, =
as set=20
forth and described in that certain ordinance adopted on the 17th =
day of=20
October 1940, authorizing the issuance of City of Galveston Wharf =
and=20
Terminal Facilities Revenue Bonds and execution of such =
properties, and=20
the accumulated income and increment thereof, as heretofore or =
hereafter=20
acquired by the City, are set apart and designated as a separate =
utility=20
of the City, to be known as AGalveston=20
Wharves@ =
and to be=20
managed, maintained, operated and controlled as herein=20
provided.
The Texas=20
Supreme Court has recognized that while the City of Galveston owns =
the=20
wharves and terminal facilities of Galveston harbor, they =
Ahave been=20
set apart as a separate utility known as the Galveston=20
Wharves.@ =20
City of Galveston v. Hill, 519 S.W.2d 103, 103 (Tex. =
1975). =20
Moreover, the City Ahas placed=20
its wharf and terminal facilities under the management and control =
of the=20
Board of Trustees of the Galveston Wharves.@ =20
Lake Charles Harbor & Terminal Dist. v. Board of Trs. of =
the=20
Galveston Wharves, 62 S.W.3d 237, 246 (Tex. App.CHouston=20
[14th Dist.] 2001, pet. denied); see also Hill, 519 S.W.2d =
at 104=20
(A[T]he=20
management and control of the Galveston Wharves has been invested =
in a=20
board of trustees.@). =20
Thus, the Wharves is a separate governmental unit from the =
City. =20
See Lake Charles Harbor & Terminal Dist., 62 S.W.3d at =
246=20
(AThe=20
Wharves is thus a governmental unit, and as such is protected by =
the=20
doctrine of sovereign immunity.@). =20
Even if=20
the City operates the Port, its operations are governmental=20
functions. The Texas Tort Claims Act provides a limited =
waiver of=20
governmental immunity if certain conditions are met. =
Sykes,=20
136 S.W.3d at 638; Turvey v. City of Houston, 602 S.W.2d =
517, 519=20
(Tex. 1980). AThe=20
proprietary-governmental dichotomy has been used to determine a=20
municipality=3Ds immunity=20
from suit for tortious conduct.@ =20
Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. =
2006). =20
A=20
municipality has no immunity for torts committed in the =
performance of its=20
proprietary functions. Id. The proprietary =
functions of=20
a municipality are those conducted A>in its=20
private capacity, for the benefit only of those within its =
corporate=20
limits, and not as an arm of the government.=3D@ =
Id. (quoting Dilley v. City of Houston, 148 Tex. =
191, 222=20
S.W.2d 992, 993 (1949)). Thus, when a municipality commits a =
tort=20
while engaged in a proprietary function, it is liable to the same =
extent=20
as a private entity or individual. City of Corpus Christi =
v.=20
Absolute Indus., 120 S.W.3d 1, 3 (Tex. App.CCorpus=20
Christi 2001, pet. denied). The Act provides a nonexclusive =
list of=20
proprietary functions. Tex.=20
Civ. Prac. & Rem. Code Ann. ' =
101.0215(b) (Vernon 2005).
A=20
municipality has immunity for governmental functions, except to =
the extent=20
immunity is waived by acts, omission, and conditions as specified =
in the=20
Act. City of El Paso v. Gomez-Parra, 198 S.W.3d 364, =
367=20
(Tex. App.CEl Paso=20
2006, no pet.). Governmental functions are those that are =
enjoined=20
on a municipality by law and are given by the State as part of the =
state=3Ds=20
sovereignty, to be exercised by the municipality in the interest =
of the=20
general public. Tex. Civ.=20
Prac. & Rem. Code Ann. ' =
101.0215(a) (Vernon 2005). Section 101.0215(a) provides a=20
nonexclusive list of governmental functions for which a =
municipality may=20
be held liable under the Act. Id.; City of Kemah =
v.=20
Vela, 149 S.W.3d 199, 203 n.1 (Tex. App.CHouston=20
[14th Dist.] 2004, pet. denied).
Relying on=20
section 101.0215(b)(1), which provides the Aoperation=20
and maintenance of a public utility@ =
is a=20
proprietary function, appellants assert the operation of the Port =
of=20
Galveston is a proprietary function. Thus, according to =
appellants,=20
the Port of Galveston, which has been set aside as a Aseparate=20
utility@ =
under the=20
City=3Ds charter,=20
is a Apublic=20
utility@ =
under the=20
acts enumerated as proprietary functions in section =
101.0125(b). =20
However, the Texas Transportation Code expressly enumerates =
actions=20
related to owning and operating a port are governmental=20
functions:
(a) A municipality =
that owns=20
and operates a port may construct, acquire, lease, improve, =
enlarge,=20
extend, repair, maintain, replace, develop, or operate a port =
improvement=20
or facility.
(b) A port =
improvement or=20
facility may be constructed on land acquired by purchase, lease, =
or=20
otherwise, and the land, interest in the land, or port improvement =
or=20
facility may be conveyed by lease, sublease, or sale by =
installment or=20
otherwise on the terms the municipality determines to be=20
advantageous.
(c) Each=20
power provided by this section is a public and governmental =
function,=20
is exercised for a public purpose, and is a matter of public=20
necessity.
Tex. Transp. Code Ann.=20
' =
54.003=20
(Vernon Supp. 2006) (emphasis added). The Transportation =
Code is=20
applicable to municipalities that are located on the Gulf of =
Mexico, or=20
channel, canal, bay, or inlet connected to the Gulf, and has a =
population=20
of more than 5,000. Tex.=20
Transp. Code Ann. ' =
54.001=20
(Vernon Supp. 2006). Appellants do not dispute that the=20
Transportation Code applies to the City of Galveston. =
Moreover, the=20
Texas Supreme Court has already defined certain actions with =
regard to the=20
Port of Galveston as governmental functions. See =
Hill, 519=20
S.W.2d at 105 (stating A[t]he=20
management of income and revenue from the Galveston Wharves, the =
setting=20
of rates and the determination of policies@ =
are=20
governmental functions which cannot be delegated or bartered =
away). =20
The City=3Ds=20
charter=3Ds=20
designation of the Wharves and Port as a Aseparate=20
utility@ =
does not=20
make it a Apublic=20
utility.@ =20
Appellants=20
further assert the Texas Supreme Court has held the operation of =
the Port=20
of Galveston is proprietary function. See Guillory v. =
Port of=20
Houston Auth., 845 S.W.2d 812, 815B16 (Tex.=20
1993). In Guillory, Guillory, a longshoreman, was =
unloading=20
cargo, when the truck he was driving flipped backwards off of a =
ramp and=20
into a ship=3Ds=20
hold. Id. at 812. The issue in Guillory =
was=20
whether the liability of the Port of Houston Authority, which was =
leasing=20
trucks for profit, could be limited to $100,000 for its alleged =
negligence=20
under the Texas Tort Claims Act. Id. at 813 (citing =
Tex. Civ. Prac. & Rem. Code =
Ann. ' =
101.023). Guillory argued that the Port =
Authority=3Ds leasing=20
of trucks for profit was a proprietary function and that it should =
be=20
liable to the same extent as a private entity conducting the same=20
activity. Id. at 814. The court held the =
Houston Port=20
Authority, as a navigation district created by the Legislature =
under=20
article XVI, section 59 of the Texas Constitution, is Aentirely =
governmental in function@ =
and the=20
Legislature has not waived immunity for it. Id. =
(emphasis=20
added).
Appellants,=20
however, rely on the following text from Guillory in =
support of=20
their argument:
It cannot=20
be denied that applying immunity based upon the creation of the=20
governmental unit instead of its function results in certain =
anomalies and=20
inconsistencies. As Guillory points out, the Port of =
Galveston,=20
owned and operated by the City of Galveston, is not as fully =
shielded by=20
immunity as is the Port of Houston, a water navigation =
district, even=20
though the two entities perform similar functions. =
Id. =
at=20
815B16=20
(emphasis added).
Appellants=3D =
reliance=20
on Guillory is misplaced. The court in =
Guillory did=20
not state that the operation of a port by a municipality is a =
proprietary=20
function when it stated Athe Port=20
of Galveston, owned and operated by the City of Galveston, is not =
as fully=20
shielded by immunity as is the Port of Houston, a water navigation =
district.@ =20
Guillory, 845 S.W.2d at 815. To the extent =
Guillory=20
could be read that the operation of port by a municipality is a=20
proprietary function, such language is dicta. =
Appellants=3D =
first and=20
second issues are overruled.
In their=20
third issue, appellants argue that even if the operation of the =
Port of=20
Galveston were a governmental function, the trial court erred in =
holding=20
the City possessed complete immunity because it would still =
possess=20
limited liability under the Texas Tort Claims Act. For a=20
municipality to be liable for a governmental function, liability =
must=20
arise out of one of the specific areas of waiver listed under =
section=20
101.021. =20
Vela, 149 S.W.3d at 203 n.1. Section 101.021 waives =
immunity=20
for performing a governmental function in Athree=20
general areas: >use of=20
publicly owned automobiles, premises defects, and injuries arising =
out of=20
conditions or use of property.=3D@ =20
Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. =
2000)=20
(quoting Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298=20
(Tex.1976)). Appellants=3D =
first=20
amended petition does not allege use of a vehicle, premises =
defect, or=20
injury arising out of the condition or use of tangible personal=20
property. Appellant=3Ds third=20
issue is overruled.
Accordingly,=20
the judgment of the trial court is affirmed.
/s/ =20
J. Harvey Hudson
Justice
Judgment=20
rendered and Memorandum Opinion filed April 19, 2007.
Panel=20
consists of Justices Anderson, Hudson, and Guzman.
Tex. Civ. Prac. & Rem. Code =
Ann. ' 101.0215(b)(1) (emphasis =
added).
Tex. Civ. Prac. & Rem. Code =
Ann. ' 101.021. (Vernon 2005). =20
|