James T. Campbell Justice

On Appeal from the 72nd District Court Lubbock County, Texas
Trial Court No. 2014-513 ,894, Honorable Ruben Gonzales Reyes, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Two of appellant Racquel Davis's horses died and a third was disabled after she fed them hay purchased from appellee the City of Lubbock. When Davis sued the City, the trial court sustained the City's plea to the jurisdiction and dismissed the case. We agree with the City that its sale of the hay was an exercise of a governmental function and Davis's claim does not come within a waiver of the City's governmental immunity. Accordingly, we will affirm.

Background

The City holds a permit from the Texas Commission on Environmental Quality (TCEQ) authorizing the City to pump treated effluent by pipeline from its wastewater treatment system to its Lubbock Land Application Site (LLAS) reservoir, where it is used for crop irrigation. By the terms of the TCEQ permit, the City must conduct grazing and harvesting activities on the irrigated land at the LLAS according to an approved crop management plan.

A primary concern addressed by the plan involves the high level of nitrogen contained in the effluent. It states, "The continued primary objective of the land application system is to minimize movement of nitrogen out of the crop root zone (and, thus, possibly into the groundwater) by meeting weekly crop water and nitrogen needs and optimizing crop water and nitrogen uptake." The plan further provides:

The Grazing/Haying plots will improve crop vegetation harvesting on plots and, thus, increase the crop water and nutrient uptake at LLAS. Grazing/Haying will promote a cyclical pattern of crop growth, harvest, and re-growth. Soil, groundwater, crop growth, animal numbers and nitrogen balance data will be collected each year from each plot and management area. These data will be used to ensure that agricultural management practices are providing an acceptable nitrogen balance and complementing the groundwater remediation plan.

One of the crops grown and harvested by the City on the LLAS is Triticale. It is harvested by baling into hay. Although the TCEQ permit does not require sale of the crops, the City sells some of the hay to the public. It is undisputed the hay Davis purchased was Triticale hay grown at the LLAS.

Davis alleged City employees failed to exercise ordinary care in the harvesting of the Triticale hay she fed her horses. She alleged the hay had been baled before the cut Triticale had been allowed to dry sufficiently, leading to the presence of bacteria in the bales. The bacteria, she alleged, was toxic to her horses. She further alleged City employees negligently failed to test the bales for the presence of bacteria before selling them. And she alleged City employees performed the harvesting by the use of motor-driven equipment like a tractor and hay baler.

The City answered Davis's suit and filed a plea to the jurisdiction supported with evidence. It asserted the complained-of activity was a governmental function for which its immunity from suit was not waived. Davis responded with evidence. The trial court sustained the City's plea to the jurisdiction.

Analysis

Through her first issue Davis asserts the baling and selling of hay by the City was a proprietary function for which it is not immune from suit. By her second issue Davis argues that even if the damage-causing activity she alleges was a governmental function, her damages were caused by the City's negligent operation or use of a motor-driven vehicle or motor-driven equipment for which immunity is waived by the Texas Tort Claims Act. Governmental Immunity

"Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). A municipality may assert governmental immunity in a suit for money damages against it. City of San Antonio v. Alamo Aircraft Supply, Inc., 448 S.W.3d 507, 511 (Tex. App.—San Antonio 2014, no pet.) (citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)); see Suarez v. City of Texas City, 465 S.W.3d 623, 631 (Tex. 2015) ("Absent a valid statutory or constitutional waiver, trial courts lack subject-matter jurisdiction to adjudicate lawsuits against municipalities)." "[Governmental] immunity from suit defeats a trial court's subject matter jurisdiction . . . ." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

The subject-matter jurisdiction of a trial court may be challenged by a party's plea to the jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). A plea to the jurisdiction is a dilatory plea functioning "to defeat a cause of action without regard to whether the claims asserted have merit." Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

We review de novo the ruling of a trial court on a plea to the jurisdiction as the existence of jurisdiction is a question of law. Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). Review of the trial court's ruling on a plea to the jurisdiction begins with the live pleadings. Miranda, 133 S.W.3d at 226. A plaintiff must affirmatively demonstrate the trial court's jurisdiction. Id. "When a plea to the jurisdiction challenges the existence of facts alleged by the pleader to establish the trial court's subject-matter jurisdiction, the trial court must consider relevant evidence submitted by the parties." Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). This standard generally mirrors that applicable to a traditional motion for summary judgment. Id. at 228; TEX. R. CIV. P. 166a(c). Thus, the trial court may consider affidavits and other summary judgment-type evidence. FKM P'Ship v. Board of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 628 (Tex. 2008). The court takes as true evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the nonmovant's favor. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Miranda, 133 S.W.3d at 227-28. Issue One: Was the City engaged in a governmental or proprietary function?

The Texas Constitution empowers the Legislature to "define for all purposes those functions of a municipality that are to be considered governmental and those that are proprietary . . . ." TEX. CONST. art. XI, § 13. Statute provides that governmental functions 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." TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a) (West Supp. 2017); Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006) (explaining a governmental function is an act exclusively involving governmental matters performed solely for public benefit). A city is immune from suit for its torts committed in the performance of a governmental function unless the Legislature has, by clear and unambiguous language, expressly waived that immunity. City of Elgin v. Reagan, No. 03-06-00504-CV, 2009 Tex. App. LEXIS 1369, at *7 (Tex. App.—Austin 2009, no pet.) (mem. op.) (citing City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995), superseded by statute on other grounds as stated in Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54 (Tex. 2011)). A city's governmental functions include health and sanitation services, sanitary and storm sewers, and water and sewer service. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a) (2), (9), (32). It is undisputed the City's disposition of treated effluent from a wastewater treatment plant pursuant to a TCEQ permit is a governmental function. See City of Houston v. Downstream Envtl., 444 S.W.3d 24, 33-36 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (op. on reh'g) (finding city's disposal of plaintiff's liquid waste through city's sanitary sewer system was a governmental function).

In contrast, proprietary functions are those a municipality "may, in its discretion, perform in the interest of the inhabitants of the municipality." TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(b); City of Mexia, 197 S.W.3d at 343 (explaining a city conducting a proprietary function acts in its private capacity for the sole benefit of those within its corporate limits, not as an arm of the government). A city is not immune from suit for its torts committed while performing proprietary functions. City of Mexia, 197 S.W.3d at 343.

In a suit against a municipality, determining the municipality's "amenability to suit is a two-step inquiry." City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 360 (Tex. App.—Houston [14th Dist.] 2008, no pet.). "First we determine whether the function is governmental or proprietary." Ethio Express Shuttle Serv., Inc. v. City of Houston, 164 S.W.3d 751, 754 n.4 (Tex. App.—Houston [14th Dist.] 2005, no pet.). "If the function is governmental, the second step of the analysis addresses whether immunity has been waived by statute." Petroleum Traders Corp., 261 S.W.3d at 355 (citing Ethio Express, 164 S.W.3d at 756-57). "[C]ases involving claims against a city begin with the threshold question of whether the city was acting in a proprietary or governmental function." Truong v. City of Houston, 99 S.W.3d 204, 209 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Davis urges the negligent baling and selling of hay is the focus of her complaint. Relying heavily on the 1951 opinion in City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010 (1951), she contends that a line should be drawn between the discharge of treated effluent at the LLAS, concededly a governmental function, and the baling and selling of hay, which, she contends, is a proprietary function of the City.

Davis's argument disregards provisions of the crop management plan incorporated into the City's TCEQ permit. As noted, the plan anticipates a "cyclical pattern of crop growth, harvest, and re-growth," and requires collection of data related to those activities. The plan requires, for instance, "haying records," which "include forage yields (dry tons) for each haying event for each plot [of land] and forage tissue analysis to support nutrient balance computations." The harvesting of the Triticale crop through baling is a required part of the activities permitted by the TCEQ. Even under the line-drawing analysis described in Shilling, the baling of the hay must be considered a part of the governmental function the City exercises, governed by the state-agency permit. The court in Shilling observed that "[t]he state placed no duty upon the city to repair its garbage trucks in its own repair shop." 240 S.W.2d at 1012. The same cannot be said for the harvesting of crops irrigated with wastewater at the LLAS. The crop management plan requires the harvesting of the crops; the activity is not discretionary for the City.

Nor can the City be said to conduct its activities required by the crop management plan for the sole benefit of those within its corporate limits. City of Mexia, 197 S.W.3d at 343. The protection of groundwater is one of the aims of the TCEQ permit. The LLAS lies partly within the edge of Lubbock's city limits, but most of its 6400 acres lie outside the City. The baling of the hay grown on the LLAS is a governmental, not a proprietary, function.

But neither the crop management plan nor other elements of the TCEQ permit require the City to sell its hay to the public. We readily conclude, however, that the sale of the baled hay is sufficiently closely related to the performance of the City's TCEQ-permitted activities as to come within the governmental functions the permit authorizes. This case thus fits in the line of cases represented by City of Elgin, 2009 Tex. App. LEXIS 1369, at *8, in which the court held that "allowing the adoption of animals from the City's shelter is an activity so closely related to animal control that it is a governmental function." Disposition of the City's hay by sale to the general public is no less closely related to the City's TCEQ-permitted activity than the City of Elgin's disposition of animals by adoption. See also Petroleum Traders Corp., 261 S.W.3d at 355-56 (governmental functions encompass activities closely related to or necessary for performance of governmental activities designated by statute; there, procurement of fuel necessary for governmental tasks); Ethio Express Shuttle Serv., 164 S.W.3d at 756 (regulation of private shuttle service "well aligned" with governmental functions of airports, traffic regulation and transportation, and so governmental, not proprietary); Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 356-57 (Tex. App.—San Antonio 2000, pet. denied) (removal of barge from marina included in governmental function of operating marina and park).

We have considered the other cases on which Davis relies. None of those cases require a conclusion the City's baling and selling of hay from the LLAS was the exercise of a proprietary function.

Davis's evidence includes expert affidavit testimony criticizing the City's choice of Triticale rather than other crops such as legumes like alfalfa or soybeans because of Triticale's relative inefficiency for nitrogen uptake. Triticale is among the crops recommended by the consulting company who prepared the crop management plan. That one crop might in some respect be superior to another does not diminish the governmental nature of the function the City performs in its use of wastewater.

Because the evidence conclusively demonstrates the City's conduct on which Davis bases her suit is not the exercise of a proprietary function of the City, we overrule Davis's first issue. Second Issue: Waiver of Immunity for Use of Motor-Driven Equipment

We now turn to Davis's second issue and whether the City's immunity was waived under the Texas Tort Claims Act because Davis suffered property damage proximately caused by the City's operation or use of a motor-driven vehicle or motor-driven equipment.

We assume for this analysis the truth of Davis's allegations and evidence. In her live petition she alleged the City's "employees failed to allow sufficient time for the triticale hay to cure, after it was cut by [the City's] employees using a tractor, and such employees then negligently used a tractor and baler attachment, motor driven equipment, to prematurely bale triticale hay. . . . Additionally [the City's] employees failed to exercise ordinary care [by] failing to test the baled triticale hay to determine whether it contained harmful levels of mesophilic bacteria, which could poison livestock." Davis further alleged the City breached its duty of care to her by "failing to allow cut triticale hay to dry sufficiently before baling with a tractor and hay baler; By failing to test baled triticale hay to determine whether it contains mesophilic bacteria in levels that are toxic to livestock; and By selling [Davis] toxic hay." Davis also alleged the City "failed to exercise ordinary care in the use of a tractor and baler, motor driven equipment, to bale the triticale hay, which was eventually sold to [Davis] and injured her horses."

In addition to the expert opinion evidence previously noted, Davis supported her response to the City's plea to the jurisdiction with evidence addressing the hay and its effect on her horses. Brice Chapman expressed the opinion that bacteria capable of killing a horse can grow in prematurely baled hay. To avoid that consequence, it was his opinion that, after cutting and before baling, the hay should be allowed to aerate and dry. During the drying, he said, the internal moisture level of the hay should be frequently tested. The hay may be baled once the moisture testing indicates it has reached the appropriate moisture level. Louis Farr, D.V.M., treated Davis's surviving horse and performed a necropsy on one of her dead horses. In his opinion, the toxicity of the hay caused the deaths of Davis's two horses and injury to the third. Davis testified one of the horses won multiple championships and expressed the opinion the total value of the three was $200,000. Davis's father testified he placed hay purchased from the City in the area where Davis's horses were kept and the following day found two of them dead and the third "extremely sick."

Davis contends the City's governmental immunity was waived under section 101.021(1)(A) because she alleged "(a) actual, negligent use of the motor driven equipment and (b) that such use proximately caused her injury." She urges the 2015 Texas Supreme Court opinion in Ryder Integrated Logistics, Inc., v. Fayette County, 453 S.W.3d 922 (Tex. 2015) (per curiam), supports her position the damages to her horses arose from operation or use of the City's tractor and hay baler. We find instead that Ryder Integrated supports the contrary conclusion.

In Ryder Integrated, during a 3:00 a.m. traffic stop of an eighteen-wheeler, a deputy sheriff moved his vehicle to a location at which its headlights and "high-beam spotlight" faced oncoming traffic. While the deputy was still maneuvering his vehicle, a Ryder truck veered right and clipped the trailer of the stopped truck. The collision caused the Ryder truck to overturn; its driver was killed in the resulting fire. In litigation that followed, Ryder alleged its driver was blinded or distracted by the deputy's vehicle's headlights which the county conceded were directed at oncoming traffic. Ryder Integrated, 453 S.W.3d at 926. In a plea to the jurisdiction, the county alleged liability was not waived because the accident did not arise from the use of a vehicle. The trial court sustained the county's plea to the jurisdiction. The court of appeals affirmed, holding "'the claim of distraction [by the headlights] seems to be more properly classified as a condition that made the accident possible than as the actual cause of the accident itself.'" Id. (quoting Ryder Integrated Logistics, Inc. v. Fayette Cnty., 414 S.W.3d 864, 869 (Tex. App.—San Antonio 2013)).

Considering whether Ryder had alleged harm arising from the use of the deputy's vehicle, the Supreme Court noted section 101.021's vehicle-use requirement means "a government employee must have been actively operating the vehicle at the time of the incident." Ryder Integrated, 453 S.W.3d at 927 (citing LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 52 (Tex. 1992)). And "the tortious act alleged must relate to the defendant's operation of the vehicle rather than to some other aspect of the defendant's conduct. In other words, even where the plaintiff has alleged a tort on the part of a government driver, there is no immunity waiver absent the negligent or otherwise improper use of a motor-driven vehicle." Id. at 928. "For example," the court said, "a driver's failure to supervise children at a bus stop may rise to the level of negligence, but that shortcoming cannot accurately be characterized as negligent operation of the bus," and in similar fashion "a police officer may commit assault in his cruiser, and that assault may constitute a tort, but it is not tortious use of a vehicle." Id. (citing Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208 (Tex. 1989) and Hernandez v. City of Lubbock, 253 S.W.3d 750 (Tex. App.—Amarillo 2007, no pet.)). The court found Ryder alleged an injury arising from the tortious operation or use of a vehicle for the purpose of section 101.021, noting "it is undisputed that [the deputy] was driving—and thus operating—his vehicle at the time the accident occurred." Id. at 930, 931.

We think it is immediately apparent that Davis has not alleged harm arising from the use or operation of the City's tractor or hay baler, as that requirement of section 101.021(1)(A) has been applied. No operation of the tractor or hay baler is alleged to have been occurring when Davis's horses were injured through their ingestion of the hay. Nor has Davis alleged a tortious act relating to the City's operation of the tractor or baler. Ryder Integrated, 453 S.W.3d at 927-28. A tractor and hay baler were merely involved in the process of cutting and baling hay. "The causal nexus is not satisfied by the mere involvement of a vehicle, nor by an operation or use that does no more than furnish the condition that makes the injury possible." City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex. App.—Dallas 2010, pet. denied) (quotation marks omitted). "When an alleged cause is geographically, temporally, or causally attenuated from the alleged effect, that attenuation will tend to show that the alleged cause did no more than furnish the condition that made the effect possible." Id. Because we find such an attenuation is present in Davis's allegations and evidence, we conclude the City's tractor and hay baler did no more than furnish a part of the condition that made her horses' injuries possible. Finding the facts do not show Davis sustained any damage arising from the City's negligent use of a vehicle or motor-driven equipment, we overrule Davis's second issue. Futility of Amending Davis's Petition

A plaintiff is generally entitled to a reasonable opportunity to amend her petition "unless the pleadings affirmatively negate the existence of jurisdiction." Potter County v. Tuckness, 308 S.W.3d 425, 431 (Tex. App.—Amarillo 2010, no pet.) (citing Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007)). Davis presented detailed amended pleadings and responded to the City's plea to the jurisdiction with a substantial body of evidence. The facts giving rise to Davis's complaint were thoroughly presented. Yet they do not come within a statutory waiver of the City's immunity from suit. Davis cannot change the facts surrounding her claim. Thus, amended pleadings will not alter the jurisdictional determination.

Conclusion

Having overruled Davis's two issues, we affirm the trial court's order.

James T. Campbell

Justice