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                                  MEMORANDUM OPINION

                                         No. 04-08-00213-CV

                                     CITY OF SAN ANTONIO,
                                            Appellant

                                                 v.

                                          Daniel CANALES,
                                              Appellee

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CI-12797
                       Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Alma L. López, Chief Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: October 1, 2008

AFFIRMED

           Daniel Canales sued the City of San Antonio claiming the City wrongfully demolished his

residence and its contents after the structure was partially damaged by fire. Canales pled that

governmental immunity was waived under section 101.21 of the Texas Tort Claims Act. The City

answered and filed a plea to the jurisdiction asking that the suit be dismissed because Canales’s

pleadings failed to establish waiver of the City’s governmental immunity. The trial court denied the

City’s motion and this accelerated appeal followed. Finding no error, we affirm the trial court’s

order.
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       1. In its first two issues, the City contends Canales has not pled facts sufficient to establish

waiver of immunity because all of his complaints concern a “discretionary” decision made by City

officials for which they and the City retain immunity from suit. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.056(2) (Vernon 2005) (waiver provisions under Texas Tort Claims Act do not apply to

claims based on the City’s discretionary decisions). Specifically, the City maintains in its briefing

that the fire chief was performing a discretionary duty when he made the emergency decision to

demolish the fire-damaged structure. An act is discretionary for purposes of not waiving sovereign

immunity if the act “requires exercising judgment and the law does not mandate performing the act

with such precision that nothing is left to discretion or judgment.” State v. Rodriguez, 985 S.W.2d

83, 85 (Tex. 1999) (per curiam). The record before us, which consists of only pleadings, establishes

that Canales did plead that governmental immunity was waived because damages to his property was

caused by the wrongful act or omission or the negligence of City employees acting within the scope

of their employment and through the use of motorized equipment. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021 (Vernon 2005). In his pleadings, Canales claims certain procedures must be

followed under the City Code even in an “emergency case,” including that the “employee must

obtain the concurrence of the director of development services” and “determine that under the

circumstances no other abatement procedure is reasonably available except demolition.” The failure

to follow specific procedural steps set forth in the City Code, as alleged by Canales, may not be

discretionary. See Rodriguez, 985 S.W.2d at 85; City of El Paso v. W.E.B. Investments, 950 S.W.2d

166, 170 (Tex. App.—El Paso 1997, pet. denied) (city employee who failed to follow non-

discretionary city policy before demolishing building was subject to suit). Accordingly, we cannot

say Canales has failed to plead sufficient facts to establish waiver of governmental immunity. See



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Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (when reviewing plea

to jurisdiction, we construe pleadings in favor of plaintiff).

       2. The City next argues that no negligent implementation of policy exists under the facts

pleaded by Canales and “[a]ny alleged failure to follow the administrative procedures would at the

most be negligent discretionary formulation of the order for which the City would still retain

immunity.” (emphasis added). We disagree. Our Supreme Court, in discussing “the discretionary

powers exemption[] to the Tort Claims Act, . . . distinguished between the negligent formulation of

policy, for which sovereign immunity is preserved, and the negligent implementation of policy, for

which immunity is waived.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)

(citing State v. Terrell, 588 S.W.2d 784, 787-88 (Tex. 1979)). If an employee acts negligently in

carrying out policy, government liability may exist under the Act. City of Brownsville, 897 S.W.2d

at 754. Here, Canales’s pleadings sufficiently allege that the City Code established a set procedure

to be followed prior to demolishing a structure even in emergency circumstances; therefore, under

these pleadings, government liability may exist under the Act. Finding no error, we affirm the trial

court’s decision denying the City of San Antonio’s plea to the jurisdiction.



                                                                 Phylis J. Speedlin, Justice




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