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treating appeal as premature until the associate judge's order is ratified in a de novo hearing by the district court
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No. 05-19-01431-CV
06-29-2021
TOWN OF HIGHLAND PARK, Appellant v. Tiffany Renee MCCULLERS, et al., Appellees
John Francis Roehm III, Thomas P. Brandt, Dallas, for Appellant. Stephen M. Halbeisen, Dallas, for Appellee.
John Francis Roehm III, Thomas P. Brandt, Dallas, for Appellant.
Stephen M. Halbeisen, Dallas, for Appellee.
Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
Opinion by Justice Pedersen, III
The case was submitted to and oral argument held before a panel consisting of Chief Justice Burns, Justice Pedersen, III, and Justice Evans. Justice Goldstein succeeded Justice Evans on January 1, 2021. Justice Goldstein did not participate in oral argument but—having reviewed the briefs and the record before this court—participates in this opinion.
This is a tragic case. Appellees sued, among other defendants, the Town of Highland Park, Texas (the "Town") asserting negligence and premises liability claims in connection with the death of Officer Calvin Marcus McCullers. The Town filed a plea to the jurisdiction, which the trial court denied. After reviewing the parties’ briefs and the record, we reverse the trial court's orders denying the Town's plea to the jurisdiction. We dismiss Appellees’ claims against the Town for want of jurisdiction.
I. BACKGROUND
A. July 4–5, 2016
At times, the Town's Department of Public Safety (Town DPS) provides and coordinates opportunities for peace officers to perform extra duty work at the request of the Town's residents and property owners. On July 4, 2016, James Morden, a public safety officer with the Town, offered a security service assignment to Southern Methodist University ("SMU") police officer Calvin Marcus McCullers ("Officer McCullers"). Officer McCullers accepted the assignment to guard a private residence located at 4100 St. Johns Avenue (the "Property") that was under construction. The Property is close to the Wycliff Avenue Dam (the "Dam").
It is undisputed that the Town did not directly own the Property during the relevant period.
Officer McCullers arrived at the Property on July 4, 2016, at 11:24 p.m. and sat post in his vehicle. Sporadic, heavy rain began to fall. At about 12:10 a.m. on July 5, 2016, Officer McCullers backed his car to the corner of the residence. Sporadic, heavy rain continued to fall, and Officer McCullers remained in his vehicle. At 12:40 a.m., the National Weather Service issued a severe thunderstorm warning for "Dallas County in North Central Texas." At 1:04 a.m., the National Weather Service issued a flood advisory—"urban and small stream flood advisory for ... Dallas County in North Central Texas." At 1:28 a.m., water spread across the area where Officer McCullers was parked. Officer McCullers moved into the passenger seat of his vehicle. At 1:39 a.m., Officer McCullers called 911 for assistance and spoke with the dispatcher for the Town DPS; at that time, water rose up the sides of his vehicle. Seconds later, Officer McCullers opened the passenger door and stepped out of the vehicle. Officer McCullers lost his footing, and the water swept him and his vehicle over an embankment at the edge of the Property.
At 1:40 a.m., the Town DPS dispatched a rescue response, but it could not access the Property due to the high, swift water. The Town DPS contacted Dallas Fire Rescue, who immediately sent a swift water rescue team to the Property. The Town DPS reached the Property at about 2:00 a.m. to search for Officer McCullers, but it found no sign of him or his vehicle. At this time, Dallas Police Department performed several helicopter sweeps to search for Officer McCullers and his vehicle but could not find either. In the early afternoon of July 5, 2016, Officer McCullers's vehicle was found submerged in Turtle Creek, south of Stonebridge Drive in Dallas. On August 26, 2016, Officer McCullers's body was recovered nearly three and a half miles downstream of the Property on the bank of the Trinity River.
B. Procedural History
On July 5, 2018, Appellees filed suit against the Town. Appellees amended their petition to assert tort claims against the Town on the theories of (i) negligence, based on a failure to warn Officer McCullers about the possibility of flooding in connection with the coordination of the security service assignment on the Property, (ii) premises liability, based on the knowledge of the Dam, thunderstorm warning, and flood advisory creating a dangerous condition, and (iii) negligence, based on the use and condition of the Dam.
The Town filed a plea to the jurisdiction asserting governmental immunity. In February 2019, the Honorable District Judge Gena Slaughter heard this plea to the jurisdiction, which resulted in the parties’ conducting additional discovery on jurisdictional issues. The Town thereafter filed a supplemental plea to the jurisdiction, which the Honorable Associate Judge Monica Purdy heard on August 9, 2019. On October 11, 2019, Associate Judge Purdy entered an order denying the Town's plea to the jurisdiction. This appeal followed. On November 11, 2020, we held oral argument on the case, and it was submitted.
Appellees filed their third amended petition on August 8, 2019.
Texas Civil Practice and Remedies Code section 51.014 permits appeal from a district court's interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
On March 26, 2021, our Court created binding precedent in Hull v. Ocwen Loan Servicing, LLC , No. 05-20-00731-CV, 2021 WL 1152900, at *1 (Tex. App.—Dallas Mar. 26, 2021, no pet. h.). Hull addressed whether an appeal was premature when a party appealed an associate judge's summary judgment order—which was neither a default nor an agreed order—under Texas Government Code § 54A.117. Hull , 2021 WL 1152900, at *1 ; see TEX. GOV'T CODE ANN. § 54A.117. We held that, because the associate judge's order was not ratified by the referring court by signature under Texas Government Code § 54A.116, the appeal was premature. Hull , 2021 WL 1152900, at *3 ; see GOV'T CODE § 54A.116(b).
Texas Government Code § 54A.117 provides:
(a) Not later than the 30th day after the date an action is taken by an associate judge, a referring court may modify, correct, reject, reverse, or recommit for further information the action taken by the associate judge.
(b) If the court does not modify, correct, reject, reverse, or recommit an action to the associate judge, the action becomes the decree of the court.
Gov't Code § 54A.117.
Texas Government Code § 54A.116 provides, in pertinent part:
(b) Except as provided by Subsection (c), the date an order or judgment by the referring court is signed is the controlling date for the purposes of appeal to or request for other relief from a court of appeals or the supreme court.
(c) The date an agreed order or a default order is signed by an associate judge is the controlling date for the purpose of an appeal to, or a request for other relief relating to the order from, a court of appeals or the supreme court.
Gov't Code § 54A.116 (emphasis added).
Here, as in Hull , the Town appealed an associate judge's order, which was neither agreed, a default, nor ratified by the referring court. However, the appellate timetable does not begin to run on such an order until it has been signed by the referring court. Hull , 2021 WL 1152900, at *1–2. In accordance with Hull , we abated this appeal to afford the parties an opportunity to obtain a signed order by the referring court. We ordered the district clerk to file a supplemental clerk's record containing either (i) a copy of the referring court's order or (ii) a written verification that no order was signed. On June 17, 2021, District Judge Slaughter entered an order denying the Town's plea to the jurisdiction, and the district clerk filed an according supplemental clerk's record. We reinstated this appeal on June 21, 2021.
II. ISSUES RAISED
The Town raises four issues on appeal:
1. Whether the trial court lacked subject-matter jurisdiction over Appellees’ claims against the Town because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.
2. Whether the trial court lacked subject-matter jurisdiction over Appellees’ premises defect claim because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.
3. Whether the trial court lacked subject-matter jurisdiction over Appellees’ negligence claim based on use or condition of real property because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.
4. Whether the trial court lacked subject-matter jurisdiction over Appellees’ negligence claim based on the Town's coordination of off-duty law enforcement services.
III. STANDARD OF REVIEW
Subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993). Subject-matter jurisdiction is never presumed and cannot be waived. Id. at 443–44. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action based on lack of subject-matter jurisdiction without regard to the merits of the claim. Town of Fairview v. Lawler , 252 S.W.3d 853, 855–56 (Tex. App.—Dallas 2008, no pet.) (citing Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000) ). A trial court's ruling on a plea challenging subject-matter jurisdiction is a question of law and, consequently, reviewed de novo. City of Dallas v. Redbird Dev. Corp. , 143 S.W.3d 375, 380 (Tex. App.—Dallas 2004, no pet.) (citing Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998) ).
A plea to the jurisdiction may challenge either the pleadings or the existence of jurisdictional facts. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226–27 (Tex. 2004). Should a plea to the jurisdiction challenge the existence of jurisdictional facts, we consider relevant evidence submitted by the parties, when necessary, to resolve the jurisdictional issues raised. Id. at 227. In such case, we are not bound by the plaintiff's factual allegations. City of Dallas v. Hughes , 344 S.W.3d 549, 553 (Tex. App.—Dallas 2011, no pet.). This standard mirrors our summary judgment standard under rule 166a of the Texas Rules of Civil Procedure, and it places the burden on the plaintiff to allege facts that affirmatively demonstrate the trial court's jurisdiction. Miranda , 133 S.W.3d at 228 (referring to TEX. R. CIV. P. 166a). The governmental unit then has the burden to assert and support its contention, with evidence, that the trial court lacks subject-matter jurisdiction. City of Dallas v. Heard , 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied) (citing Miranda , 133 S.W.3d at 228 ). Should the governmental unit meet that burden, the plaintiff must raise a material fact issue regarding jurisdiction to survive the plea to the jurisdiction. Id. (citing Miranda , 133 S.W.3d at 228 ). In our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiff's intent. Id.
"In reviewing a summary judgment, we must accept as true evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor." Park Place Hosp. v. Estate of Milo , 909 S.W.2d 508, 510 (Tex. 1995).
If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea, and the fact question will be resolved by the factfinder. City of Dallas v. Mazzaro , No. 05-20-00103-CV, 2020 WL 6866570, at *2 (Tex. App.—Dallas Nov. 23, 2020, no pet. h.) (mem. op.). If the relevant evidence is undisputed or fails to raise a fact issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda , 133 S.W.3d at 228.
IV. DISCUSSION
A. Governmental Immunity
Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011) (citing Tooke v. City of Mexia , 197 S.W.3d 325, 331 (Tex. 2006) ). Sovereign immunity and governmental immunity are two related common-law doctrines that protect the government from suit. Harris Cty. v. Annab , 547 S.W.3d 609, 612 (Tex. 2018). The purpose of governmental immunity is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments. Tooke , 197 S.W.3d at 332. Sovereign immunity deprives a trial court of subject-matter jurisdiction over lawsuits in which the state or certain governmental units have been sued—unless the state or governmental unit consents to suit. Miranda , 133 S.W.3d at 224.
" ‘Sovereign immunity protects the state and its various divisions, such as agencies and boards, from suit and liability, whereas governmental immunity provides similar protection to the political subdivisions of the state, such as counties, cities, and school districts.’ " Annab , 547 S.W.3d at 612 (quoting Travis Cent. Appraisal Dist. v. Norman , 342 S.W.3d 54, 57–58 (Tex. 2011) ).
Under the common-law, municipalities like the Town are immune from suit and liability for money damages unless the legislature has clearly and unambiguously waived immunity. Worsdale v. City of Killeen , 578 S.W.3d 57, 62 (Tex. 2019). Absent a valid statutory waiver of immunity, a trial court may not assume subject-matter jurisdiction over a suit against a governmental unit. City of San Antonio v. Tenorio , 543 S.W.3d 772, 775 (Tex. 2018) (citing Ryder Integrated Logistics, Inc. v. Fayette Cty. , 453 S.W.3d 922, 926–27 (Tex. 2015) ).
B. Texas Torts Claim Act
The Texas Tort Claims Act ("TTCA") waives governmental immunity in certain limited circumstances, including for personal injury caused by a condition or use of personal or real property. CIV. PRAC. & REM. § 101.021(2) (providing for waiver of immunity for personal injury or death caused by condition or use of tangible personal or real property). This limited waiver is available only if the claimant complies with statutory notice requirements. Worsdale , 578 S.W.3d at 62 ; see also CIV. PRAC. & REM. § 101.101 ; GOV'T CODE § 311.034 (statutory notice provisions are jurisdictional requirements in all suits against governmental entities). Section 101.101 of the TTCA provides that either formal or actual notice of a claim must precede the filing of any lawsuit against a governmental unit:
(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.
CIV. PRAC. & REM. § 101.101. Thus, to prove each of their claims, Appellees must show either (i) timely submitted presuit notice of their claims to the Town or (ii) the Town had actual notice of their claims.
Issue One: Whether the trial court lacked subject-matter jurisdiction over Appellees’ claims against the Town because Appellees failed to demonstrate a waiver of the Town's entitlement to governmental immunity.
As to all of Appellees’ claims, the Town argues that (i) Appellees did not comply with the TTCA or Town Charter's notice requirements and (ii) the Town had no actual notice of Appellees’ claims. We first address the notice requirements under the TTCA.
i. Notice Requirements Under TTCA and Town Charter
Apart from the TTCA requirements, the Town's charter provides that
[t]he Town shall never be liable for any personal injury, whether resulting in death or not, unless the person injured or someone in his behalf, or in the event the injury results in death, the person or persons who may have a cause of action under the law by reason of such death injury, shall file a notice in writing with the Town Secretary within thirty (30) days after the same has occurred....
Irrespective of the Town's thirty-day or the TTCA's six-month notice time period, it is undisputed that Appellees did not provide written notice to the Town of their claims within six months of the accident. The record shows the accident occurred on July 5, 2016. The earliest notice of Appellees’ claims is a letter to the Town's secretary dated June 5, 2018—stamped received June 8, 2018. Therefore, we agree with the Town that Appellees failed to provide timely notice of their claims under section 101.101(a) and the Town Charter. See CIV. PRAC. & REM. § 101.101(a). However, Appellees argue that they were not required to provide written notice of their claims pursuant to section 101.101(c). See CIV. PRAC. & REM. § 101.101(c). We next discuss this assertion.
ii. Actual Notice of Claims
For a governmental unit to have actual notice, it must have knowledge of (1) a death, injury, or property damage; (2) the governmental unit's fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved. Tenorio , 543 S.W.3d at 776 (citing Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995) ). Knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental entity on actual notice as required under the TTCA. Id. (the governmental entity must have same knowledge it would have received under written notice provision). It is apparent from the record that the Town met the first and third elements for having actual notice of Appellees’ claims. Thus, the only remaining question is whether the Town had knowledge of its own "fault that produced or contributed to the death." Id.
Appellees ask us to reject the Texas Supreme Court's interpretation of the TTCA notice requirement from Cathey —the three-part test discussed above, which includes as a second element "the governmental unit's fault that produced or contributed to the death, injury, or property damage." Cathey , 900 S.W.2d at 341. Citing Justice Boyd's concurrence in Worsdale , Appellees assert that the Cathey decision language contradicts the legislative intent of the TTCA and fundamental judicial principles. Worsdale , 578 S.W.3d at 78 (Boyd, J. concurring) ("[T]he [Texas Supreme] Court and the courts of appeals have struggled to understand and apply Cathey ever since."). However, the majority opinion in Worsdale specifies:
Cathey has long been settled law, no compelling reason necessitates overturning it, and as we reaffirm today, it was correctly decided in the first instance. The Court is certainly not infallible, and reasonable minds often disagree about how a statute may reasonably be construed. But if we were wrong in Cathey , the matter has become so settled that it is now a policy matter for the Legislature to address.
Worsdale , 578 S.W.3d at 77 (quotation omitted). Accordingly, we decline Appellees’ request that we reject Cathey . See id. "We are bound by the pronouncements of the Texas Supreme Court on the law until the [C]ourt states to the contrary." Benser v. Indep. Bank , 735 S.W.2d 566, 569 (Tex. App.—Dallas 1987), aff'd sub nom. Allee v. Benser , 779 S.W.2d 61 (Tex. 1988)
Actual notice under section 101.101(c) requires evidence that the government had knowledge of its alleged fault in causing or contributing to the claimant's injury. See Worsdale , 578 S.W.3d at 65 ("[T]here must be subjective awareness connecting alleged governmental conduct to causation of an alleged injury to person or property in the manner ultimately asserted."). "The issue is not whether the City should have made the connection between injury and responsibility as alleged, but whether the City made the connection or had knowledge that the connection had been made." Id. at 66 (emphasis in original). "This is a fact-based inquiry that may be determined as a matter of law when the facts are undisputed." Id. at 77.
Appellees rely on the following facts and circumstances in their assertion that the Town had actual notice of their ultimate claims through the Town's subjective awareness of the following:
(i) Officer McCullers's 911 call;
(ii) the Town DPS's response to the call;
(iii) the Town's participation in searching for Officer McCullers and his vehicle;
(iv) the identification of Officer McCullers's body on August 25, 2016;
(v) the testimony from the Town's engineer, Meran Dadgostar that "after the accident, [the Town Council] wanted to see what it will take to ... get the road out of the floodplain ... and [had] questions that we didn't have before";
(vi) minutes from the Town Council's July 11, 2016 meeting, which included discussions of flooding at Wycliff Avenue and the Town's concern with safety;
(vii) an April 15, 2009 Dam Evaluation Report conducted by the Texas Commission on Environmental Quality ("TCEQ"); and
(viii) knowledge of the condition of the Dam and the approaching storm at the time of the incident.
The Texas Supreme Court has stated:
The actual notice requirement is not met just because the governmental unit (1) should have investigated an accident as a prudent person would have, (2) investigated an accident as part of its routine safety procedures, or (3) should have known it might have been at fault based on its investigation.
Tenorio , 543 S.W.3d at 776. The first four items reveal that the Town (i) acted on and investigated Officer McCullers's request for rescue and (ii) learned of Officer McCullers's death. However, those acts and the knowledge of Officer McCullers's death are not sufficient to establish actual notice under the TTCA. Id. Furthermore, Dadgostar's testimony makes no connection between the Town's (i) knowledge or actions and (ii) fault relating to Appellees’ claims. Instead, Dadgostar acknowledges
after the accident, [the Town Council] wanted to see what it will take to—get the road out of the floodplain so the water goes underneath and who is going to be affected, what properties are going to have negative impacts, how much it's going to cost, what is going to happen to city of Dallas ...
Dadgostar's testimony does not demonstrate that the Town had subjective awareness of Appellees’ claims of the Town's fault.
Similarly, the Town Council's July 11, 2016 meeting minutes do not demonstrate that the Town had subjective awareness of Appellees’ claims. Although Appellees contend these minutes indicate the Town's knowledge of responsibility, the record of the minutes shows neither specific discussion of Officer McCullers nor any general description or discussion of the accident. The minutes do not include discussion of (i) any claims or fault, (ii) flooding on private property, or (iii) flooding at the Property. Instead, the minutes show the Town Council discussed (i) the flooding "triggered a need ... to fund an engineering study to assess potential flood conditions at Wycliff[ ] Avenue"; (ii) a previous engineering study, which identified costs of improvements; (iii) the need for a forensic review of the flood event; and (iv) potential solutions to and respective consequences of flooding in the area. The minutes further show the Town Council's desire to reduce or prevent flooding in the area and "what can be done to keep people out of this intersection." Thus, the Town Council minutes do not demonstrate subjective awareness of any liability as there was no mention of an injury or death, fault, or the identities of the parties involved.
The Town argues that on July 11, 2016, the Town Council had no notice of Officer McCullers's death, for Officer McCullers's body was not recovered until August 25, 2016. Appellees’ third amended petition states "[the Town] had actual knowledge of Decedent's death and Plaintiffs’ loss and damages on or about August 26, 2016, when Decedent's body was recovered and identified."
Appellees contend that the Town knew of the area's general propensity for flooding in combination with the condition of the Dam. However, the record does not reflect that such knowledge had any connection with the circumstances of the instant case or Property on which the accident occurred. Appellees direct us to evidence of an April 15, 2009 TCEQ Dam Evaluation Report conducted on the general location of "North of Saint John's Street and East of Lakeside Drive" citing:
An [Hydrologic and Hydraulic] analysis should be performed by a [Licensed Texas Professional Engineer] for this structure to confirm safe passage of the required projected flood event [50% of the Probable Maximum Flood] through the service spillway. Depending on the results of the analysis, additional spillway capacity may need to be designed and installed into the structure. Any such dam modification plans must be submitted to our office for review and approval prior to the beginning of any work.
Appellees contend that this report finds the Dam "hydraulically inadequate." However, the report contains no such finding. Instead, the report states, "It is not known if the dam and its service spillway are hydraulically adequate to pass [a minimum 50% of the Probable Maximum Flood event.]"
McCullers further contends the TCEQ Report required the Town to modify the Dam. However, the TCEQ Report did not require the Town to take any action. Dadgostar further disagreed the Dam was required to meet certain criteria regarding the TCEQ Report.
Appellees assert the Town knew (i) that any storm greater than a two- or three-year storm would overtop the Dam, thereby constituting an unsafe environment, and (ii) that such knowledge amounted to subjective awareness of their claims. Rick Pyle, the Town's Director of Public Safety, testified that the area around the Property "seem[ed] to be low" and that in his twenty-two years of operations experience, "water was high there, five or six times." However, Appellees conflate the propensity for the dam to flood with the specific flood event, which caused Officer McCullers's death. The dangerous condition was not the dam but rather the flooding caused by the rain on July 4–5 of 2016.
Appellees argue that the Town had actual notice of the flooding, referring to the July 5, 2016 National Weather Service Warnings. However, the record shows Pyle did not recall receiving any weather warnings, and there is no other evidence in the record to indicate that Town personnel received the National Weather Service Warnings. Moreover, in Reyes v. City of Laredo , the Texas Supreme Court held the City's knowledge of torrential rains did not establish actual knowledge of flooding at a location that had flooded previously during heavy rains—such knowledge of prior flooding was not sufficient to waive governmental immunity. 335 S.W.3d 605, 608–09 (Tex. 2010). Relying on City of San Antonio v. Rodriguez , Appellees argue that the Town's actual knowledge of the dangerous condition of the flood may be proven by reasonable inference. 931 S.W.2d 535, 537 (Tex. 1996) (per curiam). However, in Reyes the Texas Supreme Court distinguished Rodriguez :
However, Pyle testified of a system "where these warnings would be sent to a list of [Town personnel] by e-mail or text or some method of notification." The National Weather Service Warnings did not indicate whether the storm was a two- or three-year storm.
"Circumstantial evidence establishes actual knowledge only when it ‘either directly or by reasonable inference’ supports that conclusion." City of Corsicana v. Stewart , 249 S.W.3d 412, 415 (Tex. 2008) (quoting State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez , 82 S.W.3d 322, 330 (Tex. 2002) ).
[In Rodriguez ], the plaintiff, while playing basketball in a recreation center, had slipped in water that had dripped onto the floor from a leak in the roof. Given the "evidence that the person in charge of the recreation center knew of the leaks in the roof and knew that it had been raining," we concluded that, "[d]epending on the position of the leaks above the floor and the amount of rain, the jury might have inferred that the person in charge knew that there would be water on the floor." In other words, evidence of the nature of the leaks and the amount of rain on the roof could make the presence of water on the floor a virtual certainty.
Reyes , 335 S.W.3d at 609 (emphasis added, internal citations omitted). Here, unlike in Rodriguez , the record does not indicate such "virtual certainty" for the Town regarding flooding at the Property area. See id. Indeed, the evidence shows Officer McCullers's 911 call was the first time the Town learned of flooding at the Property. Therefore, the instant case is closer to the situation in Stewart . 249 S.W.3d at 412 ("City first learned the crossing had flooded when Stewart called 911 for help, which was after the dangerous condition had arisen."). In Reyes , the Texas Supreme Court held:
[In Stewart ], two children drowned late one night in a rainstorm when the car in which they were riding was swept away by flood waters where the road crossed a creek. The City of Corsicana knew, of course, that it had been raining heavily and that the crossing flooded in such weather, and it had received many calls throughout the night from stranded motorists and flooded homeowners. We concluded that [n]either this evidence nor the inferences arising therefrom raise a fact question on the City's actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident.
Reyes , 335 S.W.3d at 609 (emphasis added, internal citations and quotation omitted). Here, similar to Stewart , Officer McCullers was swept away by flood waters and neither the evidence nor inferences arising therefrom raise a fact question on the Town's actual knowledge that a dangerous condition existed at or near the Property at the time of the accident. See Stewart , 249 S.W.3d at 415. When Officer Morden communicated the assignment at the Property earlier in the day, the weather was dry and sunny. There is no evidence that the Town (or any other entity) closed any roadway near the Property before the Town's attempt to rescue Officer McCullers. The Town learned Officer McCullers was in immediate peril when he called 911, not before. Initially, the Town's officers that responded to Officer McCullers's request for rescue could not access the area due to the high, swift water. The rescuing officers required additional assistance upon arrival at the Property. Lastly, Appellees have not identified any Town official likely to have made the connection between the tragic circumstances of this case and any fault on the part of the Town. The evidence in this case does not reasonably support the inference that the Town actually knew the Property area was flooded on the night of the accident. See id. Thus, the record is not sufficient to support an inference of actual knowledge of a dangerous condition at the time it was occurring. See Stewart , 249 S.W.3d at 416 (citing Gonzalez , 82 S.W.3d at 330 ).
In their premises liability claim, Appellees assert that the Town had subjective awareness of either a premises defect on its real property or of a negligent condition on its real property that caused Officer McCullers's death. "As a general rule, ‘a plaintiff must prove that the defendant possessed—that is, owned, occupied, or controlled—the premises where injury occurred.’ " Allen Keller Co. v. Foreman , 343 S.W.3d 420, 426 (Tex. 2011) (quoting Wilson v. Tex. Parks and Wildlife Dept. , 8 S.W.3d 634, 635 (Tex. 1999) (per curiam) ). "[I]f a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property...." CIV. PRAC. & REM. § 101.022(a). Appellees direct us to the Town's limited easement on the west portion of the Property. Without citation to the record, Appellees assert the Town's easement amounts to a "property right." Relying on Wilson , Appellees assert the Town "may nevertheless owe a duty of due care if it undertakes to make the premises safe for others." Wilson , 8 S.W.3d at 635. However, the record shows that (i) the Town had neither a possessory interest nor an ownership interest in the land located within the easement, (ii) the easement did not give the Town authority to control or maintain the land located within the easement, and (iii) the Town had not used the easement for some years before July 5, 2016. Appellees refer to evidence of the Town's "WHEN FLOODED TURN AROUND DON'T DROWN" warning sign in the median at the intersection of St. Johns Drive and Fitzhugh Avenue as evidence that the Town undertook a duty of care to Officer McCullers in the premises liability context. However, the sign relates to a warning on the roadway—neither a warning about nor an act in control of the Property. Thus, there is no evidence that the Town undertook to make its easement, or any other part of the Property, safe for others. See Wilson , 8 S.W.3d at 635.
The record shows this sign is adjacent to the Property.
The Town had no duty to warn others regarding the Property. See Foreman , 343 S.W.3d at 426 (holding that a party that does not own or control a property at the relevant time "was not in a position to make decisions about how to make the premises safe" and "was not in a position to erect permanent signs or other devices to warn the public of [an alleged dangerous condition]").
Appellees direct us to Worsdale in their argument that the Town had actual notice of their claims. In Worsdale , the Texas Supreme Court held the City of Killeen had actual notice of decedents’ claims after decedents died in a motorcycle accident caused by a large mound of dirt, which completely blocked an unlit county road in the City of Killeen. Worsdale , 578 S.W.3d at 59–60, 66–67. The Texas Supreme Court held:
[A]lmost immediately after the accident, the City was subjectively aware of allegations that (1) the road condition and the absence of warning signs were contributing factors to the accident and (2) the City was responsible for maintaining the road.
....
Well within section 101.101 ’s six-month notice deadline, the City knew of allegations that it was responsible for maintaining a road and that the failure to maintain the road had been identified as
a contributing factor to the injuries that provide the basis for this lawsuit.
....
City of Killeen officials from key departments participated in the investigation of the motorcycle accident, including engineering, street works, and legal.
....
[T]he crash investigation report here and the investigating officer's deposition testimony reveal a much more thorough investigation, demonstrating an effort among various City departments to track down whether the City was charged with maintaining the road and remediating the hazard. The record firmly establishes the City's knowledge connecting its alleged ownership and control of the road to the road conditions identified as contributing to Worsdale's and King's deaths.
Worsdale , 578 S.W.3d at 66–67. However, there are several distinctions between Worsdale and the instant case. Unlike Worsdale , the accident here occurred on private property—not owned, maintained, or controlled by the Town. Apart from the Town DPS investigation and report describing the rescue and recovery, there was no further investigation focused on the Town's responsibility for Officer McCullers's injury or death. The Town did not recognize that Officer McCullers was injured or died on Town property. The Town made no statements attributing Officer McCullers's death or injuries to the Town's conduct or omission. There was no participation by the Town's attorney. Unlike Worsdale , the record does not firmly establish the Town's knowledge connecting the Property and other conditions as contributing to Officer McCullers's death. See Worsdale , 578 S.W.3d at 67. ("The record firmly establishes the City's knowledge connecting its alleged ownership and control of the road to the road conditions identified as contributing to Worsdale's and King's deaths.").
The Legislature created an actual, not constructive, knowledge standard for waiver of governmental immunity. See CIV. PRAC. & REM. § 101.101(c) ; Stewart , 249 S.W.3d at 416. We must conclude that the Town had no subjective awareness, and therefore no actual notice, of Appellees’ claims under section 101.101(c). Appellees have neither raised a fact question nor otherwise demonstrated waiver of the Town's governmental immunity. Nevertheless, Appellees argue that they were not required to provide written notice or show actual notice regarding their negligence claims relating to coordination of security services because that claim arises from the Town's performance of a proprietary function. We next discuss this assertion.
iii. Proprietary Functions and Governmental Functions
Appellees assert that their negligence claim based upon the "Town's coordination of private security guard services is not brought under the TTCA because the claim arises out of the Town's engagement in a proprietary function." "A municipality is not immune from suit for torts committed in the performance of its proprietary functions, as it is [immune] for torts committed in the performance of its governmental functions." Tooke , 197 S.W.3d at 343. The TTCA defines "proprietary functions" as "those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality." CIV. PRAC. & REM. § 101.0215(b). The TTCA specifies that the "proprietary functions of a municipality do not include those governmental activities listed under Subsection (a)." CIV. PRAC. & REM. § 101.0215(c).
Appellees argue that the Town engaged in a proprietary function both when it "coordinated" and "provided" security services. However, Appellees’ third amended petition alleges the "the [Town]’s coordination of private security guard services at the Property was a proprietary function." Appellees have not pled their negligence claim on the provision of security services. Therefore, we address their claim only as to the "coordination of private security guard services." Furthermore, even if we were to consider Appellees’ negligence claim as relating to the "provision" of security guard services by the Town, our analysis of that issue would be virtually identical to our analysis of the "coordination" of security guard services by the Town.
TTCA section 101.0215 enumerates "police and fire protection and control" as the first governmental function. CIV. PRAC. & REM. § 101.0215(a)(1). The TTCA does not further define the relevant terms "police" or "protection," so we give those terms their plain meaning. Lagow v. Hamon ex rel. Roach , 384 S.W.3d 411, 416–17 (Tex. App.—Dallas 2012, no pet.) ("If words are not defined, they are given their plain and common meaning") (citing City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) ).
The pertinent inquiry is whether coordination of security services in this case falls under the governmental function of "police and fire protection and control." See CIV. PRAC. & REM. § 101.0215(a)(1). Although Appellees frame the circumstances as though the Town coordinated for Officer McCullers to merely provide private security guard services, there is no evidence to show that Officer McCullers was merely a private security officer.
The record shows Officer McCullers served as a police officer at SMU. Earlier in the day on July 4, 2016, Officer McCullers worked the fireworks display at the Dallas Country Club with Officer Morden. Officer Morden's affidavit states that "owners of a residence were interested in hiring officers to perform security work at their residence and contacted the Town about providing officers." Morden then sent communication to "law enforcement agencies" about the security assignment at the Property. After the fireworks display ended, Officer McCullers accepted the security assignment at the Property from Officer Morden.
The record shows that the Town coordinates "officers" on "extra duty services." Pyle testified that the Town did not communicate such security requests to non-licensed peace officers. "For many purposes, an officer is ‘on duty 24 hours a day.’ " Polk v. State , 337 S.W.3d 286, 288 (Tex. App.—Eastland 2010, pet. ref'd) (quoting Monroe v. State , 465 S.W.2d 757, 759 (Tex. Crim. App. 1971) ). We agree with our sister court in the context of a peace officer that is coordinated to provide security at the request of a resident; such coordination of security does not discharge police authority. See Polk , 337 S.W.3d at 288 ("[A] police officer's ‘off-duty’ status is not a limitation upon the discharge of police authority." (quoting Wood v. State , 486 S.W.2d 771, 774 (Tex. Crim. App. 1972) )). It is apparent from the record that Officer Morden coordinated with Officer McCullers in furtherance of police protection at the Property. We conclude that the Town's coordination of Officer McCullers to provide law enforcement services at the Property was an engagement of the governmental function of police protection and not an engagement of a proprietary function. See CIV. PRAC. & REM. § 101.0215(a)(1). Thus, because Officer McCullers was engaged in a governmental function, Appellees were required to provide formal or actual notice under the TTCA on their claim for negligence in coordination of the Town's security services. See CIV. PRAC. & REM. § 101.101. As we have concluded Appellees failed to demonstrate timely formal or actual notice of their claims, we sustain the Town's first issue.
The record shows coordination of officers is commonly referred as "dispatch."
While only persuasive authority, we note that, since submission, the Houston court of appeals held, "Permitting off-duty police officers to work outside jobs providing police services is closely related to the City's governmental function of providing police protection and control in the interest of the general public[ ]," and that such "services therefore were governmental for purposes of determining whether the City enjoyed governmental immunity on [Plaintiff's] intentional tort claims." Rogers v. City of Houston , No. 14-19-00196-CV, 627 S.W.3d 777, 796 (Tex. App.—Houston [14th Dist.] June 8, 2021, no pet. h.).
The Dissent undercuts the significance of Officer McCullers's service at the premises as a police officer—endowed with the privileges, responsibilities, and abilities that a licensed peace officer has earned—compared to a "night-watchman." See, e.g., CKJ Trucking, L.P. v. City of Honey Grove , 581 S.W.3d 870, 878 (Tex. App.—Dallas 2019, pet. denied) (holding an off-duty officer's "authority to act was triggered by reasonable suspicion"); Garza v. Harrison , 574 S.W.3d 389, 403 (Tex. 2019) ("Peace officers are also expected to stop crime whenever it occurs.... [Peace officers] may be required to spring into action at a moment's notice, even while off duty.... Under article 14.03(g)(2), once a police officer observes criminal activity, status as a peace officer is activated even if the officer is outside the commissioning employer's geographic jurisdiction.").
Although McCullers requests our consideration of the Wasson factors relating to whether the Town acted in a governmental or proprietary capacity, our conclusion that the Town's coordination was an engagement in police protection—the first enumerated governmental function—forecloses such discussion. See Civ. Prac. & Rem. § 101.0215(a)(1) ; Wasson Interests, Ltd. v. City of Jacksonville , 559 S.W.3d 142, 150–54 (Tex. 2018) (enumerating factors of whether the City's acts (A) were mandatory or discretionary, (B) involved public or resident benefits, (C) took the act on the State's behalf or the City's behalf, and (D) were related to a governmental function).
V. CONCLUSION
Because of our resolution of the Town's first issue, we do not reach the Town's remaining issues. We reverse the trial court's orders denying the Town's plea to the jurisdiction. We dismiss all of Appellees’ claims against the Town for want of jurisdiction.
Goldstein, J. concurring.
Burns, C.J. dissenting.
CONCURRING OPINION
Opinion by Justice Goldstein
The facts of this case are heart-wrenching, but the legal issues discrete. For us to affirm the order of the trial court, we would have to overrule legislative enactments and Texas Supreme Court precedent, neither of which we are authorized to do. Because the law requires us to hold that the Town is immune under the facts as presented, I concur with the Majority Opinion. I write separately to address the governmental–proprietary function dichotomy as it applies to Appellees’ first negligence claim.
I. BACKGROUND
In their live pleading, Appellees asserted three causes of action against the Town: two counts of negligence and one count of premises liability. Their first count of negligence pertains to the Town's policy of coordinating "private security guard services" (the "coordination claim"). Appellees pled, and argue before this Court, that such coordination was a proprietary function, thus exempting their first negligence claim from the TTCA. For its part, the Town characterizes its policy as "coordination of off-duty law enforcement services." The Town argues that this coordination falls under its governmental function of police protection and control, which is expressly listed as a governmental function in the TTCA.
The question presented here is whether the coordination of off-duty officers falls under the TTCA's enumerated function of "police ... protection and control." If we resolve this issue in Appellees’ favor, the coordination claim would survive even if Appellees’ other claims were subject to dismissal. That is because a Texas municipality enjoys no immunity for claims arising out of its proprietary functions. Conversely, if we resolve this issue in the Town's favor, the coordination claim is subject to the same immunity analysis as Appellees’ other claims.
We may not need to reach this question. Appellees’ coordination claim alleges that the Town was negligent "by failing to warn [Officer McCullers] of the unreasonable risk of flash flooding at the Property, and by failing to provide any post orders and/or instructions to [Officer McCullers] to seek shelter during rainfall events." On the face of these pleadings, it is unclear whether Officer McCullers's death "arose from" the Town's coordination of off-duty personnel, as required by the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a) ("A municipality is liable under this chapter for damages arising from its governmental functions...." (emphasis added)). The supreme court has held that in the context of the TTCA, the phrase "arises from" requires a showing that the government action was a cause in fact of the plaintiff's injury. See Ryder Integrated Logistics, Inc. v. Fayette Cty. , 453 S.W.3d 922, 928 (Tex. 2015). Thus, for example, when a condition or use of property "merely furnishes a circumstance ‘that makes the injury possible,’ the condition or use is not a substantial factor in causing the injury" and therefore not a cause in fact of same. See City of Dallas v. Sanchez , 494 S.W.3d 722, 726 (Tex. 2016).
Here, the evidence appears to show that the Town's coordination of off-duty officers did not cause, but rather merely supplied one of the conditions—the physical presence of Officer McCullers on private property that flooded—which resulted in his tragic death. Accordingly, the governmental–proprietary dichotomy would not apply to the coordination claim.
Because this issue implicates jurisdiction, it may be raised at any time, and we can request that the parties supplement their briefs to address it. See Temple v. City of Houston , 189 S.W.3d 816, 819 (Tex. App.—Houston [1st Dist.] 2006, no pet.). However, we need not reach the "arises from" issue here, because the briefs submitted by the parties allow us to adequately dispose of the parties’ issues without supplemental briefing.
See Blackwell v. Harris Cty. , 909 S.W.2d 135, 139 (Tex. App.-Houston [14th Dist.] 1995, writ denied).
I concur with the Majority that Appellees failed to provide timely written formal notice of their claim in accordance with Section 101.101(a) of the Texas Tort Claims Act ("TTCA"), and that the Town had no actual notice through actual, subjective awareness of its alleged fault producing or contributing to the death. I agree that this Court is neither in a position to disagree with the supreme court's holding in Cathey v. Booth and its progeny, nor tread where the Texas Legislature has not gone in over two decades. See Cathey v. Booth , 900 S.W.2d 339, 340 (Tex. 1995) ; see also Worsdale v. City of Killeen , 578 S.W.3d 57 (Tex. 2019) (declining to overturn Cathey ); City of San Antonio v. Tenorio , 543 S.W.3d 772 (Tex. 2018) (same); City of Dallas v. Carbajal , 324 S.W.3d 537 (Tex. 2010) (citing Cathey for the proposition that Section 101.101(c) requires a city to have "subjective awareness of its fault" in order to avoid the notice requirement of Section 101.101(a) ).
Without formal written or actual notice, the jurisdictional pre-requisites to suit are not satisfied to establish the limited waiver of governmental immunity under the TTCA, thus precluding all of Appellees’ tort claims against the Town. To avoid the harsh consequences of lack of notice, Appellees argue that the Town's coordination of off-duty police officers providing security services falls outside of the TTCA because negligence in coordination of private security services is a proprietary function.
In our de novo review, we must address a plea to the jurisdiction on a claim-by-claim basis when necessary to resolve discrete jurisdictional issues. See Thomas v. Long , 207 S.W.3d 334, 339 (Tex. 2006) (explaining that a trial court may appropriately dismiss the claims over which it lacks subject matter jurisdiction, while retaining the claims over which it has jurisdiction). Because the governmental–proprietary dichotomy determines how we must treat Appellees’ coordination claim, I address it separately.
II. DISCUSSION
"Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability from money damages." Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 655 (Tex. 2008). Under the common-law doctrine of sovereign immunity, the State cannot be sued without its consent. City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011) (citing Tooke v. City of Mexia , 197 S.W.3d 325, 331 (Tex. 2006) ). Like sovereign immunity, governmental immunity affords similar protection to subdivisions of the State, including counties, cities, and school districts. Harris Cty. v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004) ; LTTS Charter Sch., Inc. v. Palasota , 362 S.W.3d 202, 208 (Tex. App.—Dallas 2012, no pet.) ; see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (defining "governmental unit" to include cities).
Governmental immunity has two components: (1) immunity from liability, which bars enforcement of a judgment against a governmental entity; and (2) immunity from suit, which bars suit against the entity altogether. Tooke , 197 S.W.3d at 332. Immunity from suit deprives the court of subject-matter jurisdiction and is properly raised in a plea to the jurisdiction, whereas immunity from liability is asserted as an affirmative defense. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004) ; see also Palasota , 362 S.W.3d at 208. "Immunity from suit bars a suit against the State unless the Legislature expressly consents to the suit." Tex. Nat. Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 853 (Tex. 2002). "If the Legislature has not expressly waived immunity from suit, the State retains such immunity even if its liability is not disputed." Id. "Immunity from liability protects the State from money judgments even if the Legislature has expressly given consent to sue." Id.
A. Governmental–Proprietary Dichotomy
The Town's fourth issue on appeal relates to Appellees’ coordination claim. The Town contends that its coordination of off-duty law enforcement services is a governmental function under the TTCA. Appellees counter that such coordination is proprietary and thus exempt from immunity protections afforded under the TTCA.
A city's immunity from tort-based suits depends on whether its actions are characterized as governmental or proprietary functions. Tooke , 197 S.W.3d at 343. At common law, this determination was made by the courts. See id. In 1987, however, the People approved a constitutional amendment "to allow the Legislature to classify the functions of a municipality that are to be considered governmental and those that are proprietary." Williams v. City of Midland , 932 S.W.2d 679, 682–83 (Tex. App.—El Paso 1996, no writ) (citing TEX. CONST. art. XI, § 13 ). Under that authority, the Legislature amended the TTCA to classify a number of municipal functions as governmental. See id. As amended, the TTCA initially enumerated "thirty-three municipal functions defined as governmental and included not only long held governmental functions such as police and fire protection, and sanitary and storm sewers, but such traditional proprietary functions as the operations of cemeteries, waterworks, and street construction and design." See id. at 683 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a) ).
The number of enumerated governmental functions is now thirty-six. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a).
I disagree with my concurring colleague that an analysis of Town's coordination of private security services divorces that function from "police services overall." Relying on the fact that Town's police department had a policy and overall scheme for coordinating off-duty service eliminates the entire analysis. Overall scheme or no, the question we examine is the purpose of Town's activity.
Section 101.0215(a) of the TTCA defines governmental functions as those "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). Subsection (a) further provides a non-exhaustive list of thirty-six individual functions that it deems governmental. In Subsection (b), the TTCA defines proprietary functions as those that a municipality "may, in its discretion, perform in the interest of the inhabitants of the municipality...." See id. § 101.0215(b).
Subsection (c) further provides: "The proprietary functions of a municipality do not include those governmental activities listed under Subsection (a)." Id. § 101.0215(c). In other words, Subsection (c) operates as a savings clause—if the function appears on the enumerated list under Subsection (a), it is classified as governmental irrespective of whether the city is performing the function in the interest of the general public or its own inhabitants, and irrespective of whether the function is enjoined on the city by law or one it may perform in its discretion. "If the City's actions are listed as a governmental function in the TTCA, we have no discretion, regardless of the City's motives, to declare the actions as proprietary." City of Plano v. Homoky , 294 S.W.3d 809, 814 (Tex. App.—Dallas 2009, no pet.).
Thus, in determining whether a city's actions are proprietary or governmental, we must first consider whether the action falls within one of the enumerated functions in Subsection (a). In making that decision, we do not "split various aspects of a city's operation into discrete functions and recharacterize certain of those functions as proprietary." Id. at 815. In Homoky , for example, we held that the operation of a municipal golf course falls within the Act's enumerated governmental functions of "parks and zoos" or "recreational facilities." See id. at 814–15 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(13), (23) ). In so holding, we rejected Homoky's argument that, even if the operation of the golf course is governmental, the operation of the clubhouse, where his injuries occurred, is proprietary. See id. at 815. We explained that "[n]othing in the evidence shows the golf course, clubhouse, and restaurant are anything but interrelated." Id. As such, we held, "[t]he dichotomy of governmental and proprietary functions proposed by Homoky ignores the parties’ evidence and impermissibly dissects the City's operation." Id.
If a governmental function does not appear on either the list of governmental functions in Subsection (a) or the list of proprietary functions under Subsection (b), we must determine whether the function is governmental or proprietary pursuant to the TTCA's definitions. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a), (b) ; see also City of Carrollton v. Weir Bros. Contracting, LLC , No. 05-20-00714-CV, 2021 WL 1084554, at *3 (Tex. App.—Dallas Mar. 22, 2021, no pet. h.) (mem. op.) ("If a function is not designated as either governmental or proprietary, we apply the section's general definitions to determine the nature of the activity.").
And notably for the summary judgment posture presented, appellees’ pleadings describe Town's activity as "coordinating private security guard services for the convenience of residents of the Town."
B. Application of Law to Facts
The relevant facts of this case are not disputed. The legal implication of those facts under the TTCA is the crux of this dispute. Although the parties focus their arguments on Officer McCullers's status as "a private security guard" or a "licensed peace officer," that distinction misses the mark. Our task is to determine whether the Town was engaged in proprietary or governmental functions. Thus, our focus should be on the Town's off-duty officer employment policy and the singular, challenged activity thereunder—the coordination of private security services provided by off-duty officers. Officer McCullers's status is relevant only to the extent it helps resolve whether the Town's policy falls under the umbrella of police protection and control.
The Town's police department has an off-duty employment policy for its peace officers that encompasses more than the coordination of private security services at issue here. When private residents request off-duty services, the Town sends out requests to Town-employed officers who could fulfill that role. If any officer responds that they are available for the job, the Town facilitates the introduction of the officer with the resident. If no Town-employed officer is available, the off-duty opportunity may be offered to another law enforcement agency's officer, such as in the case of Officer McCullers. Internally, the police department classifies off-duty employment as either Police Related Employment or Non-Police Related Employment. The coordination of off-duty private security services provided to residents, and that being performed by Officer McCullers, is classified by the department as police related. Non-police related employment includes activities such as janitorial services. All off-duty employment must be approved by the Police Chief or his designee. The department coordinates this off-duty security service only with licensed peace officers.
Texas courts have consistently held that when a city's police activities are aimed at crime prevention, such activities are necessarily governmental. See Martinez v. City of San Antonio , 220 S.W.3d 10, 15–16 (Tex. App.—San Antonio 2006, no pet.) ("Although not a pure ‘arrest and incarcerate’ method of law enforcement," a city program aimed at suppressing gang activity through counseling, medical assessments, and job training was nevertheless governmental as a "crime prevention and reduction program"); City of El Paso v. Gomez-Parra , 198 S.W.3d 364, 369 (Tex. App.—El Paso 2006, no pet.) (holding that police activity of seizing and auctioning vehicles used in drug transportation is governmental due to statutory mandate that such vehicles are subject to forfeiture and proceeds of such sales are to be used for law enforcement purposes).
Unquestionably, police protection includes preservation and protection of the peace, of persons, and of property. See TEX. CODE CRIM. PROC. arts. 6.05 & .06. Police protection and control involves numerous policy making decisions, how to provide police protection and control or not to provide such protection, such as the number of officers, and the assignment of officers to particular duties or functions. See, e.g., Orozco v. Dallas Morning News, Inc. , 975 S.W.2d 392, 397 (Tex. App.—Dallas 1998, no pet.) ("[T]he government is immune from liability if the negligence that causes injury lies in the formulation of policy, such as whether and how to provide police protection, but the government might be liable if an officer acts negligently in carrying out that policy. This provision was intended to avoid judicial review of the discretionary policy decisions that governments must make in deciding how much, if any, police or fire protection to provide for a community."). Appellees contend that the Town engaged in a proprietary function when it coordinated the hiring of Officer McCullers to provide private security services at the property. Appellees point to the TTCA's definition of proprietary functions as those that a "municipality may, in its discretion, perform in the interest of the inhabitants of the municipality." See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(b). Because Officer McCullers was acting on behalf of a private party, and because his role ostensibly could have been performed by a private security guard, Appellees argue that the Town's coordination of his services was proprietary. This argument fails for three reasons.
First, Appellees ignore Subsection (c), the saving clause of Section 101.0215. After defining governmental and proprietary functions, and providing examples of each, the TTCA expressly states: "The proprietary functions of a municipality do not include those governmental activities listed under Subsection (a)." Id. § 101.0215(c). As such, it is immaterial whether the Town's policy benefited only its inhabitants. As we have said, "[i]f the City's actions are listed as a governmental function in the TTCA, we have no discretion, regardless of the City's motives, to declare the actions as proprietary." Homoky , 294 S.W.3d at 814.
Second, both the Texas Supreme Court and this Court have rejected an argument identical to the one Appellees advance in this case. In Guillory v. Port of Houston Authority , Guillory, a privately employed longshoreman, leased a truck from the Port of Houston Authority. 845 S.W.2d 812 (Tex. 1993). After an accident involving the truck, Guillory sued his employer and the Port Authority, alleging against the latter that the truck was defective. See id. On appeal, Guillory argued that the governmental–proprietary dichotomy should be extended to all subdivisions of the State. See id. at 814. He further argued: "If an activity could be conducted by a private entity ..., a governmental entity should not be immune from liability for conducting the same activity." Id. The Texas Supreme Court rejected both arguments and, as relevant here, explained:
If we accepted Guillory's definition of proprietary activities to include anything a private entity could do, the waiver would be expansive. Private entities can provide police and fire protection, operate prisons, and adjudicate disputes, activities which are also governmental; there are few activities indeed which are uniquely governmental. To waive immunity for all others would virtually vitiate immunity entirely. Even if the proposed waiver were narrower, however, it remains a matter for the Legislature, as we have consistently held.
Id.
We similarly rejected the argument in Homoky. There, the plaintiff argued that "the act of placing boards and planters on the floor" of a golf course clubhouse is discretionary "because such acts ‘could be performed by a private subcontractor.’ " See Homoky , 294 S.W.3d at 815 n.1. We explained, however, that the defendant city had "discretion to perform or not perform many activities in connection with its government functions [and n]either that discretion nor the existence of a profit motive reclassifies one aspect of a government function into proprietary conduct." Id. (citing City of San Antonio v. Butler , 131 S.W.3d 170, 178 (Tex. App.—San Antonio 2004, pet. denied) ). For the reasons stated in Guillory and Homoky , we must reject Appellees’ invitation to classify the Town's coordination of off-duty peace officers to provide security services as proprietary merely because it is a service that private parties can provide. Finally, Appellees’ argument fails because it impermissibly dissects the Town's coordination of off-duty security services from the Town's provision of police services overall and oversight under an umbrella Off-Duty Employment Policy. Appellees do not challenge the Off-Duty Employment Policy, other services provided thereunder, or the departmental classification of off-duty employment as Police Related or Non-Police Related. Rather, Appellees segregate for scrutiny one discrete off-duty employment opportunity and the Town's involvement in the coordination of same. The coordination of Officer McCullers's off-duty employment, however, existed in the context of broader police department policy involving the review and approval of off-duty peace officer activities in general. Appellees endeavor to impermissibly dissect the coordination of Officer McCullers's off-duty activity from the Town's broader policy relative to oversight and approval of off-duty peace officer employment. As we have held, a plaintiff "may not split various aspects of a city's operation into discrete functions and recharacterize certain of those functions as proprietary." See Homoky , 294 S.W.3d at 815 (quoting Butler , 131 S.W.3d at 178 ). As such, we must reject Appellees’ attempt to do so here.
C. Response to the Dissent
The Dissent would hold that the town's coordination policy does not fall within the ambit of police protection and control because the "Town coordinated private security services for private property owners." The Dissent explains that the fundamental purpose of the policy is private-loss prevention, even if its ultimate effect may have been crime reduction. For the purposes of this analysis, I see no difference between the two. The police are charged with enforcing the State's criminal laws, many of which are specifically aimed at protecting private interests. See, e.g., Richardson v. State , 888 S.W.2d 822, 824 (Tex. Crim. App. 1994) ("Our burglary statutes are intended to protect the sanctity of private areas, be they habitations, buildings not open to the public, or vehicles."). Whether the police discharge that duty by posting an on-duty officer at a private residence, or alternatively coordinating the presence there of an off-duty officer, the outcome is the same—police protection.
The Dissent also contends that we cannot rest our holding on "the potential for activation of [a peace officer's] on-duty status." I do not agree that our holding is limited in the way the Dissent describes. Our focus is on the Town's action, not the officer's status. The fact that Officer McCullers was off-duty, and would revert to on-duty status only if he witnessed a crime in progress, is of no moment. What matters is that the Town coordinated his presence at the property for the specific purpose of providing police protection.
Finally, after concluding that the Town's coordination of off-duty officers does not fall under the enumerated governmental function of police protection and control, the Dissent addresses the parties’ arguments related to the Texas Supreme Court decisions in Wasson I and II. See Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427 (Tex. 2016) (Wasson I ) (case of first impression holding governmental–proprietary dichotomy applies to contract claims); Wasson Interests, Ltd. v. City of Jacksonville , 559 S.W.3d 142 (Tex. 2018) (Wasson II ) (analyzing whether contract claim arose from performance of governmental or proprietary function). Even if I were to agree with the Dissent that the Town's policy did not constitute police protection and control, I would not apply the Wasson factor analysis. Wasson I and II extended the TTCA's governmental–proprietary-function analysis to contract claims outside of the statutory construct of the TTCA and the plethora of legal authority thereunder. Their application to tort claims would unnecessarily complicate our analysis. Indeed, the Wasson factors were borrowed directly from Section 101.0215 of the TTCA. See Wasson II , 559 S.W.3d at 150 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a), (b) ). Where, as here, we are considering a tort claim, the statutory scheme of the TTCA provides a direct route for determining whether the Town's conduct is governmental or proprietary; we need not take a detour into the Wasson factors to resolve the issue.
III. CONCLUSION
The issuance of three opinions for a discrete legal issue highlights the ongoing struggle associated with judicial analysis and application of the governmental–proprietary dichotomy, not only where expressly enumerated, such as under the TTCA, but also in matters of first impression, as was the case in Wasson I. It is the Legislature that is charged by the Texas Constitution with the responsibility of classifying municipal functions as governmental or proprietary. See TEX. CONST. ANN. art. XI, § 13. Should the Legislature endeavor to review the current jurisprudence on the governmental–proprietary dichotomy, it may also warrant a review of the "actual subjective awareness test" as set forth in Cathey , to address the realities of knowledge imputed to or acquired by governmental bodies. The parties in this case have endured uncertainty for 18 months and have the opportunity for one more level of review by the Texas Supreme Court. The citizens of the State of Texas and its governmental units deserve more certainty in the area of governmental immunity, which includes more meaningful guidance and clarity under current legislative immunity schemes as they exist and as they may be amended. Should the Legislature decide that the judicial pronouncements or analysis, both in tort- and contract-based claims, are indeed not in keeping with its statutory scheme, it is certainly within the Legislature's authority to provide tailored guidelines about whether, when, and to what extent a litigant may sue a governmental entity or what constitutes actual notice. See Tenorio , 543 S.W.3d at 779 ("[W]hen the questions are of statutory construction, not of constitutional import, [the Legislature] can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made.") (quoting United States v. Buffalo Ry. Co. , 333 U.S. 771, 774–75 (1948) ). Until then, Cathey, Tooke, Wasson , and their progeny control.
There are over 400 cases citing § 101.0215 of the TTCA.
Wasson II , 559 S.W.3d at 153 ; see also City of Helotes v. Page , No. 04-19-00437-CV, 2019 WL 6887719, at *4 (Tex. App.—San Antonio Dec. 18, 2019, pet. denied).
Nearly 100 cases have cited Wasson I and another 35 have cited Wasson II in the relatively few years since they were published.
Here, the record reflects a policy to permit off-duty employment of peace officers, review and approval of such employment, and its designation as either police related or non-police related. A decision on whether to utilize on-duty police officers to monitor property, vacant, under construction to prevent injury to property, or permit off-duty officers to provide a service at the behest of a resident is precisely the type of exemption necessary to avoid judicial review of governmental policy decisions.
Because the coordination and oversight of off-duty peace officer employment is characteristically a matter of police protection and control, it falls within the parameters of a governmental function under the TTCA, and Appellees were required to comply with the statutory pre-requisites of written or actual notice. Because such notice was lacking in this case, I concur with the Majority.
DISSENTING OPINION
Dissenting Opinion by Chief Justice Burns
My colleagues rely on labels instead of function—here, the Town of Highland Park's coordination of private security services for a resident—to deny deceased Officer McCullers’ family their day in court and conclude Town's actions qualified as police protection and served a governmental function. I disagree and accordingly dissent.
When municipalities perform governmental functions they are cloaked with the State's sovereign immunity. Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427, 430 (Tex. 2016) (Wasson I ) ("[A] municipality's immunity extends only as far as the state's but no further."). Governmental functions are "those acts which are public in nature and performed by the municipality as the agent of the State in furtherance of general law for the interest of the public at large." Gates v. City of Dallas , 704 S.W.2d 737, 738–39 (Tex. 1986) (internal quotation omitted). In contrast, discretionary activities primarily for the benefit of the citizens (here one citizen property owner) within the corporate limits of a town are proprietary functions outside of the immunity conferred by the State. Id. ; Tooke v. City of Mexia , 197 S.W.3d 325, 343 (Tex. 2006) (distinction lacks clarity, but generally, "proprietary functions are those conducted in ... [municipality's] private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government, while its governmental functions are in the performance of purely governmental matters solely for the public benefit") (internal quotation omitted). As discussed below, unless the function at issue is statutorily designated as governmental, the municipality's entitlement to immunity thus depends on "the relationship, or lack thereof, between the municipality and the state, not the relationship between the municipality and the party bringing suit." Wasson Interests, Ltd. v. City of Jacksonville , 559 S.W.3d 142, 146 (Tex. 2018) (Wasson II ) (internal quotation omitted).
The legislature designated thirty-six municipal functions that are governmental for purposes of immunity, including "police and fire protection and control." TEX. CIV. PRAC. & REM. CODE § 101.0215 (a)(1). Conduct enumerated in the statute as governmental deprives us of discretion to treat that conduct as proprietary. City of Plano v. Homoky , 294 S.W.3d 809, 814 (Tex. App.—Dallas 2009, no pet.). Notably, we focus on the conduct at issue, rather than the label used by Town—police related or non-police related—or the existence of a written policy utilized by Town.
The majority appears to rely on Town's argument that "all actions related to" a category included in the statute's list of governmental functions deserve the same treatment as the enumerated function, thereby foregoing any analysis of whether coordination of private security services deserves immunity as police protection and control. In support of this argument, Town cites City of Dallas v. Reata Construction Corp. , 83 S.W.3d 392, 395 (Tex. App.—Dallas 2002), rev'd on other grounds , 197 S.W.3d 371 (Tex. 2006), for its holding that "when the legislature changed a classification from proprietary to governmental, it intended all actions taken by a city within that category to be reclassified." Reliance on this holding, however, begs the question at issue here: whether coordination of private security falls within the category of "police protection." Certainly, all functions related to coordination of police protection to be provided by on-duty officers , for instance added neighborhood patrols, responses to suspicious persons, and traffic control in connection with a funeral1 or the Fourth of July parade that occurred earlier the same day through Town's streets would fall within the ambit of police protection. But coordination of security services , to be provided by off-duty officers, on private property, for one private citizen, warrants a closer examination.
In Martinez v. City of San Antonio , 220 S.W.3d 10, 15 (Tex. App.—San Antonio 2006, no pet.), our sister court examined the City of San Antonio's Gang Rehabilitation Assessment and Services Program (GRAASP), in its Youth Crime Services Unit. The program was funded by the U.S. Department of Justice and although run independently of the City and the police department, the City managed the funds for the program. The grant application described the program as intervention strategies and different methods of police protection and services, for the urban community and public at large. Under to the program, gang members were recruited based on their degree of involvement in gang activity and crime, and the severity of their criminal record. Each participant was interviewed and assessed for vocational, educational, medical or psychological status, with the goal of enrolling 85% of the participants in school or vocational training. The criminal activity and arrests of each participant were also monitored for increases or decreases, as was the crime in the target neighborhoods. In addition to reducing gang violence committed by the participants, the program sought to increase neighborhood participation in community events and associations as an additional avenue to reducing gang violence. Id. at 13. The San Antonio court concluded GRAASP was a law enforcement program, and therefore a governmental rather than proprietary function for which the City was entitled to immunity. It refused to "split various aspects" of the program to conclude that the counseling and job training altered the fundamental purpose of the program: a "crime prevention and reduction program, implemented and administered by the police department, funded by the Department of Justice ... [for the] benefit ... [of] the general public." Id. at 15.
In contrast, Town coordinated private security services for private property owners, here, one private property owner. While the effect of these services may ultimately have been crime reduction, their fundamental purpose was private loss prevention. See, e.g., Elizondo v. State , 382 S.W.3d 389, 394 (Tex. Crim. App. 2012) (private citizen providing loss-prevention services not acting as law enforcement). Certainly, the effect of alarm monitoring or fencing would be the same, yet we would have no difficulty concluding that coordination of those services would fall far outside of police protection, particularly when those services were not provided for the general public or indeed even all of Town's citizens.
Moreover, unlike my concurring colleague, I find little persuasive relevance and certainly nothing binding in Homoky , 294 S.W.3d at 813–14. Neither the conclusion that operation of a golf course falls within the defined governmental function of a "recreational facility"2 nor the analysis utilized in reaching that conclusion suggests coordination of private security services provided by off-duty officers falls within the definition of "police protection." Further, unlike Homoky in which the plaintiff sought to split consideration of the golf course operation, which easily fell within a defined governmental function, from operation of the club house in which the plaintiff's injury occurred and which did not fall so easily within the same definition, no such splitting is required here. Id. at 813 (improper to split operation of golf course from operation of a clubhouse for purposes of evaluating proprietary versus governmental functions). We examine only coordination of security services; no coupled activity exists.3
Likewise, Town's reliance on Hallmark v. City of Fredericksburg for the broad application of "police protection" fails to persuade. Hallmark v. City of Fredericksburg , No. 04-99-00519-CV, 2000 WL 730601, at *3 (Tex. App.—San Antonio June 7, 2000, pet. denied) (mem. op., not designated for publication). In Hallmark , off-duty officers practicing softball at a law enforcement center threatened the owner of adjacent property with arrest if he refused to return the ball they had hit onto his property. Concluding such a threat fell within "police protection" does not inform our analysis, however, since we see no parallel between that overt exercise of police authority and Town's coordination of private security services.
In his deposition, Town's Chief of Police testified Town coordinated and provided private security services because the residents wanted the service, "like if they're having a party or something," which also provided "additional officers in the city and additional security." He also testified Town provided those services as a courtesy and could decline to provide them. The officers were paid by the private citizens who requested their services, although at least one of the officers who coordinated such services did so while on duty for Town. Requests were made by citizens directly to the police department with the Chief or his assistant then checking if specific officers wanted the assignments, or were made directly to individual officers who accepted the work or searched for others if they did not. Nowhere in our record did the Chief describe the purpose or function of Town's coordination of these services as police protection or law enforcement.4 Instead, while performing the services Town coordinated, Officer McCullers was in his private vehicle, and rather than patrolling, was sitting in one place, essentially functioning as a night-watchman for one citizen.
Evidence that Town communicated private security requests only to licensed peace officers who in turn are potentially on duty 24 hours a day, provides the apparent basis for the majority's naked conclusion that "Officer Morden coordinated with Officer McCullers in furtherance of police protection at the Property." The fact that a peace officer was assigned to this off-duty task, however, does not convert Town's actions (or the officer's) to governmental conduct. Indeed, if we were examining Officer McCullers’ entitlement to immunity for some action taken while guarding the Property, we would look to whether he observed a crime so as to trigger his on-duty status. See City of Balch Springs v. Austin , 315 S.W.3d 219, 225 (Tex. App.—Dallas 2010, no pet.) ("If an off-duty officer observes and responds to a crime, he becomes an on-duty officer."); see also CKJ Trucking, L.P. v. City of Honey Grove , 581 S.W.3d 870 (Tex. App.—Dallas 2019, pet. denied). Thus, the potential for activation of on-duty status and the fact that a peace officer's off-duty status does not discharge his police authority has no bearing here, since those possibilities exist in any off-duty work in which an officer might engage. If we relied on the potential trigger to on-duty status, we would thus render the entire question at issue irrelevant when the questioned task was performed in connection with a municipality's peace officers. See, e.g., City of Houston v. Shilling , 240 S.W.2d 1010, 1012 (Tex. 1951) (rejecting maintenance of garbage trucks as necessary to provision of governmental garbage collection services, since "[s]urely all operations which make it possible for the city to collect garbage are not part of that function in the sense that the city is immune to liability in its performance."); see also CKJ Trucking, L.P. , 581 S.W.3d at 877 (in evaluating immunity triggered by police protection, "we must consider whether Officer Williamson's actions furthered enforcement of the law, not whether he was off duty when his actions occurred."). Further, the Chief also testified that if no officers were available, Town would recommend that the requesting resident call a private security company to coordinate the security services. Given each of these facts, including the ability of a private security firm to perform the services, for one citizen, when Town declined to, McCullers’ off-duty status, and the lack of connection between Town's coordination service and "police protection," I cannot conclude the activity was a "purely governmental matter[ ] solely for the public benefit." Tooke , 197 S.W.3d at 343.
Guillory v. Port of Houston Authority , 845 S.W.2d 812 (Tex. 1993), relied upon by my concurring colleague, does not compel a different conclusion. In concluding the Port Authority was a political subdivision of the State that could act only in a governmental rather than proprietary capacity, the Guillory court rejected the possibility that the Authority waived its immunity through proprietary conduct. Id. at 812–13. In dicta , it then built on the impossibility of waiver premised on an expansive definition of proprietary functions proposed by Guillory, which turned on whether a private entity could have provided the service at issue—leasing a truck used for unloading cargo. Id. at 814. In contrast, my conclusion does not rest on whether a private entity could have coordinated the security services at issue but instead, considers the discretionary nature of the function as well as the additional factors discussed above and below.
When the statute does not expressly designate a specific municipal activity as either proprietary or governmental, we consider the following four factors in making that determination: "(1) was the City's act ‘mandatory or discretionary,’ (2) was the City's act ‘intended to benefit the general public or the City's residents,’ (3) was the City ‘acting on the State's behalf or its own behalf’ in undertaking the activity; and (4) was the City's act ‘sufficiently related to a governmental function to render the act governmental even if it would otherwise have been proprietary.’ " Hays St. Bridge Restoration Grp. v. City of San Antonio , 570 S.W.3d 697, 705 (Tex. 2019) (quoting Wasson II , 559 S.W.3d at 150 ). These Wasson factors also support a conclusion that in providing private security services, Town was acting in a proprietary role. Town admits its coordination of these services was discretionary and the services were for the benefit of Town's residents. Moreover, and key to our inquiry regarding Town's relationship to the State with respect to the task in question and the role of immunity, we have no evidence nor any argument that in coordinating private security services, Town acted on the State's behalf. And finally, given the supreme court's caution that we may treat a proprietary action as governmental under the final Wasson factor only if the action is "closely related to or necessary for performance of" the activity described in the statute,5 I cannot conclude that even this last factor supports the existence of governmental action here. See Wasson II , 559 S.W.3d at 150.
Particularly in the summary judgment posture applicable to an evidentiary challenge to jurisdiction, where we resolve all doubts in favor of jurisdiction and construe the facts and pleadings liberally in favor of the non-movant, I would affirm the trial court.