                                 NO. 12-08-00159-CV

                         IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

THE CITY OF TYLER AND THE TEXAS                    §       APPEAL FROM THE
DEPARTMENT OF TRANSPORTATION,
APPELLANTS
                                                   §       COUNTY COURT AT LAW #2

VALERIE SMITH AND ROBERT SMITH,
APPELLEES                                          §       SMITH COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Appellants, the City of Tyler (―the City‖) and the Texas Department of Transportation
(―TxDOT‖), separately appeal the trial court‘s denial of their pleas to the jurisdiction in a
declaratory judgment action brought against them by Appellees, Valerie Smith and Robert
Smith. The City also appeals the trial court‘s denial of its traditional and no evidence motions
for summary judgment. In two issues, the City contends that the trial court should have granted
its plea to the jurisdiction and motions for summary judgment. TxDOT also raises two issues on
appeal, asserting that its plea to the jurisdiction should have been granted. We reverse and
dismiss.


                                        BACKGROUND
       The Smiths bought real property located in the City of Tyler to open a coffee shop.
Shortly before the planned opening of the coffee shop, a sinkhole developed in the shop‘s
parking lot.   The Smiths investigated and discovered that drainage pipes were running
underneath the surface of their property. Believing that the City or TxDOT might have a
drainage easement on the property, the Smiths filed a declaratory judgment action seeking to
determine whether such an easement existed. The City and TxDOT each filed a plea to the
jurisdiction. The City also filed a traditional motion for summary judgment and a no evidence
motion for summary judgment. The trial court denied the pleas to the jurisdiction and the
motions for summary judgment. This interlocutory appeal followed.
                                        CLAIMS AGAINST THE CITY
        In its first issue, the City argues that the Smiths ―never alleged any cause of action for
which the City‘s [governmental] immunity has been waived.‖
Governmental Immunity
        In 1847, the Texas Supreme Court held that ―no State can be sued in her own courts
without her consent, and then only in the manner indicated by that consent.‖                           Hosner v.
DeYoung, 1 Tex. 764, 769 (1847). This immunity also applies to political subdivisions of the
State, including counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 694 n.3 (Tex. 2003). In this context, it is referred to as governmental immunity. Id.
In Texas, governmental immunity has two components: immunity from liability, which bars
enforcement of a judgment against a political subdivision, and immunity from suit, which bars
lawsuits against the entity altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).
Immunity from suit is jurisdictional and bars suit; immunity from liability is not jurisdictional
and protects from judgments. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d
838, 842 (Tex. 2009).
        In the context of tort lawsuits against a political subdivision, the ―proprietary-
governmental dichotomy‖ has been used to determine whether the subdivision is immune from
suit for tortious conduct. Tooke, 197 S.W.3d at 343. Generally, a municipality‘s proprietary
functions are those conducted ―in its private capacity, for the benefit only of those within its
corporate limits, and not as an arm of the government.‖ Id. at 343 (quoting Dilley v. City of
Houston, 148 Tex. 191, 193, 222 S.W.2d 992, 993 (1949)). A municipality‘s governmental
functions are, generally, those conducted ―in the performance of purely governmental matters
solely for the public benefit.‖ Tooke, 197 S.W.3d at 343 (quoting Dilley, 148 Tex. at 193, 222
S.W.2d at 993). A municipality is not immune from suit for torts committed in the performance
of its proprietary functions; but it is immune from suit for torts committed in the performance of
its governmental functions. Tooke, 197 S.W.3d at 343. Texas law is unsettled as to whether the
―proprietary-governmental‖ distinction always applies to determine whether immunity from suit
exists in the context of other types of actions.1 See id. (―But we have never held that this same
distinction determines whether immunity from suit is waived for breach of contract claims, and
we need not determine that issue here.‖); cf. City of San Antonio v. Reed S. Lehman Grain,



        1
          Because of our determination that any matter relevant to the Smiths‘ declaratory judgment action involved
a governmental function, we need not address the applicability of the ―proprietary-governmental‖ distinction to this
case. See id. at 343-44 (declining to address the issue where matter determined to be governmental function).



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Ltd., No. 04-04-00930-CV, 2007 WL 752197, at *3 (Tex. App.—San Antonio Mar. 14, 2007,
pet. denied) (mem. op.) (applying the ―proprietary-governmental‖ distinction to other actions).
        Governmental immunity from suit deprives a trial court of subject matter jurisdiction.
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). When present,
governmental immunity protects the political subdivisions of the State from lawsuits for money
damages. Id. It also protects political subdivisions from lawsuits that seek to control their
actions. City of El Paso v. Heinrich, 284 S.W.3d 366, 371-73 (Tex. 2009). Neither of these
protections may be circumvented by characterizing an immunity-barred claim as a declaratory
judgment claim. See City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007).
Standard of Review2
        The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction, as
well as by other procedural vehicles, such as a motion for summary judgment. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject matter
jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004).        Appellate courts reviewing a challenge to a trial court‘s subject matter
jurisdiction review the trial court‘s ruling de novo. Id. at 228. When conducting a de novo
review, a reviewing court exercises its own judgment and redetermines each issue of fact and
law. See Schade v. Tex. Workers’ Comp. Comm’n, 150 S.W.3d 542, 549 (Tex. App.–Austin
2004, pet. denied) (citing Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)). The
reviewing court accords the trial court‘s decision no deference. See Schade, 150 S.W.3d at 549
(citing Quick, 7 S.W.3d at 116). When a conclusion of law is erroneous, but the trial court
reached the right result, the erroneous conclusion of law does not require reversal. See BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If a trial court lacks
jurisdiction over some claims but not others, the trial court should dismiss those claims over
which it does not have subject matter jurisdiction but retain those claims over which it does. See
Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006).
        ―When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court‘s jurisdiction to hear the cause.‖ Miranda,
133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the
pleader‘s intent. Id. If the pleadings affirmatively negate the existence of jurisdiction, then a
plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.
Id. at 227. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

        2
           As set forth below, we will dispose of the City‘s governmental immunity issue by way of its plea to the
jurisdiction. Therefore, we do not discuss the standard of review applicable to summary judgments. See TEX. R.
APP. P. 47.1.


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court‘s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the
issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to
amend. Id. at 226-27. If a plaintiff has been provided a reasonable opportunity to amend after a
governmental entity files its plea to the jurisdiction, and the plaintiff‘s amended pleading still
does not allege facts that would constitute a waiver of immunity, then the trial court should
dismiss the plaintiff‘s action. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). ―Such
a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction
once that issue has been finally determined.‖ Id.
       ―[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues
raised, as the trial court is required to do.‖ Miranda, 133 S.W.3d at 227. When reviewing a plea
to the jurisdiction in which the pleading requirement has been met and evidence has been
submitted to support the plea that implicates the merits of the case, we take as true all evidence
favorable to the nonmovant. Id. at 228. We indulge every reasonable inference and resolve any
doubts in the nonmovant‘s favor. Id. If the evidence creates a fact question regarding the
jurisdictional issue, a plea to the jurisdiction will not be granted, and the fact issue will be
resolved by the fact finder. See id. at 227-28. However, if the relevant evidence is undisputed or
fails to raise a fact question on the jurisdictional issue, the plea to the jurisdiction may be ruled
on as a matter of law. See id. at 228.
       It is undisputed that the trial court held a hearing on the City‘s plea to the jurisdiction.
However, the City has not sought to bring forward a reporter‘s record of that hearing. Absent
such a record, we generally presume that sufficient evidence was before the trial court to support
its decision. See Sweed v. City of El Paso, 194 S.W.3d 684, 686 (Tex. App.–El Paso 2006, no
pet.). However, the City need only present a record sufficient to show reversible error. See
Sweeney v. Jefferson, 212 S.W.3d 556, 561 n.7 (Tex. App.–Austin 2006, no pet.). And, ―[a]
reporter‘s record may not be necessary for review of pure questions of law.‖ See id.
Discussion
       In support of its first issue, that the Smiths ―never alleged any cause of action for which
the City‘s [governmental] immunity has been waived,‖ the City asserts that ―all of the Smiths‘
claims relate solely to the City‘s ‗governmental functions.‘‖ As such, the City asserts that
governmental immunity bars the Smiths‘ lawsuit absent an allegation in their pleadings that
some exception to governmental immunity applies.           Arguing that no valid exception was
pleaded, the City further argues that the trial court should have dismissed the Smiths‘ claims
against the City.    The Smiths pleaded that the case involves a proprietary function, ―the


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maintenance of a drainage easement.‖ Therefore, according to the Smiths‘ pleadings, the City
does not enjoy immunity from suit.
       The Texas Constitution authorizes the legislature to ―define for all purposes those
functions of a municipality that are to be considered governmental and those that are proprietary,
including reclassifying a function‘s classification assigned under prior statute or common law.‖
Tooke, 197 S.W.3d at 343 (quoting TEX. CONST. art. XI, § 13). For purposes of tort liability, the
legislature has statutorily included ―sanitary and storm sewers‖ among a municipality‘s
governmental functions. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(9) (Vernon 2005);
PKG Contracting, Inc. v. City of Mesquite, 197 S.W.3d 388, 388-89 (Tex. 2006). Further, the
Texas Supreme Court has held that ―sanitary and storm sewers‖ are governmental functions
under the common law. PKG Contracting, 197 S.W.3d at 388-89. And cities regularly address
drainage problems by using storm sewers. See 23 David B. Brooks, Texas Practice: Municipal
Law and Practice § 22.09 (2d ed. 1999) (―Drainage, as a municipal utility, usually takes the form
of storm sewers, to be distinguished from sanitary sewers.‖). Therefore, we construe the Texas
Supreme Court‘s holding in PKG Contracting to include municipal drainage easements as
governmental functions under the common law. See PKG Contracting, 197 S.W.3d at 388-89.
       Nevertheless, the Smiths argued in the trial court, and continue to argue here, that they
simply seek a declaratory judgment as to the existence of a drainage easement. They assert that a
declaratory judgment action is the proper vehicle to determine the existence of an easement and
that such an action is not barred by governmental immunity. The City claims that the true
purpose of the Smiths‘ action is ultimately to impose liability upon the City. As such, the City
argues that the Smiths‘ action is barred by governmental immunity.
       The protections of governmental immunity may not be circumvented by characterizing an
immunity-barred claim as a declaratory judgment claim. See Williams, 216 S.W.3d at 828-29.
Here, any claim that a drainage easement has existed in the past can relate only to an injury, if
any, that has already occurred. The only plausible remedy for such a past injury would be
money damages. See id. at 829 (―The only injury the retired firefighters allege has already
occurred, leaving them with only one plausible remedy – an award of money damages.‖). Such a
claim, even where veiled as a declaratory judgment claim, is barred by governmental immunity.
See Reata Constr., 197 S.W.3d at 374.
       Any suit to determine whether the City presently has a drainage easement on the Smiths‘
property can relate only to controlling the City‘s actions.      The only possible purposes of
determining if the City has an easement are to determine whether the City should be maintaining
the pipes and property in question and whether the City can take affirmative steps to stop the


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Smiths from repairing or modifying the pipes and property in question. See Heinrich, 284
S.W.3d at 372 (―[S]uits . . . seeking to establish a contract‘s validity, to enforce performance
under a contract, or to impose contractual liabilities‖ are barred by governmental immunity
because they ―attempt to control state action by imposing liability on the State.‖). Therefore, the
only reason for seeking such a finding is to control the actions of the City.                      But here,
governmental immunity protects the City from lawsuits against it seeking to control its actions.
See id. at 372-73. This is true even where such a lawsuit is veiled as a declaratory judgment
claim. See Williams, 216 S.W.3d at 828-29.
        The Smiths‘ claims against the City, while couched as declaratory judgment claims,
actually either relate to money damages or to controlling the actions of a municipality.
Therefore, they are barred by governmental immunity. See Heinrich, 284 S.W.3d at 371-73;
Reata Constr., 197 S.W.3d at 374. We sustain the City‘s first issue.


                                        CLAIMS AGAINST TXDOT
        In its first issue, TxDOT argues that sovereign immunity bars the Smiths‘ claims against
TxDOT.


Sovereign Immunity
        As noted above, it has long been recognized that ―no State can be sued in her own courts
without her consent, and then only in the manner indicated by that consent.‖ See Hosner, 1 Tex.
at 769. This immunity also applies to ―the various divisions of state government, including
agencies, boards, hospitals, and universities.‖ Wichita Falls State Hosp., 106 S.W.3d at 694 n.3.
In this context, it is referred to as sovereign immunity. Id. Like governmental immunity,
sovereign immunity has two components: immunity from suit and immunity from liability.
Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001).
Immunity from suit is jurisdictional and bars suit; immunity from liability is not jurisdictional
and protects from judgments. Harris County Hosp. Dist., 283 S.W.3d at 842.
Discussion3
        For the reasons set forth when addressing the City‘s first issue, we hold that the Smiths‘
declaratory judgment claims against TxDOT are barred by sovereign immunity. These claims
have only two possible purposes, to subject TxDOT to monetary liability or to control the actions
of TxDOT. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855-56

        3
           The review of a plea to the jurisdiction based upon sovereign immunity involves the same standard of
review as that applied to the City‘s first issue. Therefore, we do not repeat the standard here.



                                                      6
(Tex. 2002) (plurality op.) (suits to subject State to monetary damages or to control State‘s
actions are barred by sovereign immunity). A plaintiff cannot defeat sovereign immunity by
simply veiling his barred claims as declaratory judgment claims. See id. at 856; see also State v.
Beeson, 232 S.W.3d 265, 271-72 (Tex. App.–Eastland 2007, pet. abated) (declaratory judgment
action against State to determine existence of easement barred by sovereign immunity). We
sustain TxDOT‘s first issue.4
                                                    DISPOSITION
         Having sustained the City‘s first issue and TxDOT‘s first issue, we reverse the order of
the trial court denying the City‘s and TxDOT‘s pleas to the jurisdiction and dismiss, with
prejudice, the Smiths‘ action for lack of subject matter jurisdiction.5 See Sykes, 136 S.W.3d at
639 (requiring dismissal with prejudice where plaintiff previously had opportunity to amend).




                                                                         SAM GRIFFITH
                                                                                Justice


Opinion delivered December 14, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         4
            We note that TxDOT made a claim for injunctive relief and attorney‘s fees in its answer. See Reata
Constr., 197 S.W.3d at 376-77 (partial waiver of immunity by assertion of affirmative claim for monetary relief).
However, as explained by the Texas Supreme Court, when we review a party‘s pleadings for subject matter
jurisdiction, we require that ―the pleader . . . allege facts that affirmatively demonstrate the court‘s jurisdiction to
hear the cause.‖ Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Here, the Smiths
have not alleged in their pleadings that TxDOT‘s claims result in a waiver of immunity or otherwise provide
jurisdiction. This is so despite the fact that the Smiths amended their pleadings in an attempt to demonstrate
jurisdiction. Nor have the Smiths based any argument in this appeal upon TxDOT‘s pleadings. Because it was the
Smiths‘ burden to present a basis for jurisdiction in their pleadings, we have not considered the ramifications of
TxDOT‘s claims when making our determination of jurisdiction. See Dallas Area Rapid Transit v. Whitley, 104
S.W.3d 540, 542 (Tex. 2003) (plaintiff bears burden to ―affirmatively demonstrate the court‘s jurisdiction‖ and to
dispute government‘s allegations). Further, to the extent we might potentially consider the effect of TxDOT‘s
claims when determining the appropriate disposition of this case, the fact that the Smiths amended their pleadings
without including any assertion based upon these claims is controlling. See Sykes, 136 S.W.3d at 639 (requiring
dismissal with prejudice where plaintiff previously had opportunity to amend).
         5
           Because the City‘s and TxDOT‘s first issues were dispositive, we do not address either party‘s second
issue. See TEX. R. APP. P. 47.1.


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