                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                        No. 04-13-00364-CV

                               SAN ANTONIO WATER SYSTEM,
                                        Appellant

                                                    v.

                               Robert OVERBY and Teresa Overby,
                                          Appellees

                    From the 225th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-CI-02799
                          Honorable Martha B. Tanner, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: March 19, 2014

REVERSED AND RENDERED

           Appellees Robert and Teresa Overby sued San Antonio Water System (SAWS) and other

defendants for recurring flooding that damaged their yard and home. In response, SAWS asserted

governmental immunity in a plea to the jurisdiction. The trial court denied SAWS’s plea, and

SAWS filed this interlocutory appeal.           Because the evidence conclusively proves SAWS’s

governmental immunity was not waived, we reverse the trial court’s order and render judgment

that the Overbys take nothing from SAWS on their taking and nuisance claims.
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                                                  BACKGROUND

         The Overbys’ home in San Antonio, Bexar County, Texas has an alley that runs behind it.

Over a period of several years, their yard and home were flooded by rainwater and sewage. After

their complaints to SAWS and others remained unresolved, the Overbys sued multiple defendants

including SAWS. The Overbys allege SAWS knew its maintenance of the sewer system, including

the alley’s surface over the sewer system, caused rainwater to damage their yard and home. They

also allege that SAWS knew its failure to use proper manhole covers caused the sewer system to

overflow and deposit fecal matter across their yard. The Overbys assert causes of action for taking,

negligence, and nuisance. They also included a declaratory judgment action which asked the court

to declare which defendant was responsible for the condition of the alley.

         Asserting governmental immunity, SAWS filed its Plea to the Jurisdiction. The trial court

granted it in part, and dismissed with prejudice the Overbys’ declaratory judgment action and their

negligence claim. After more discovery, SAWS filed its Second Plea to the Jurisdiction. The trial

court denied SAWS’s second plea, 1 and SAWS sought this interlocutory appeal. SAWS again

asserts its governmental immunity and insists the Overbys’ taking and nuisance claims fail as a

matter of law.

                                             STANDARD OF REVIEW

         Governmental immunity is a common-law doctrine that extends immunity from suit and

liability to governmental entities performing governmental functions. City of Galveston v. State,



1
  SAWS filed its Second Plea to the Jurisdiction on March 4, 2013; the trial court denied the plea in its April 7, 2013
order. Although the order is titled Order Denying San Antonio Water System’s Motion for Summary Judgment and
Plea to the Jurisdiction, the appellate record does not show that SAWS filed a motion for summary judgment, and our
appellate jurisdiction is limited to the denial of the plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(8) (West Supp. 2013) (authorizing an interlocutory appeal when a trial court “denies a plea to the
jurisdiction by a governmental unit”); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007) (reiterating
“the general rule that only final judgments are appealable” but recognizing that section 51.014(a) authorizes certain
interlocutory appeals).

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217 S.W.3d 466, 469 (Tex. 2007); Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex.

Political Subdivisions Prop./Cas. Joint Self–Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). A

governmental entity may raise its immunity from suit in a plea to the jurisdiction. See Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a plea to the

jurisdiction similarly to a traditional summary judgment: “[W]e take as true all evidence favorable

to the nonmovant [and] indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.” Id. at 228 (citation omitted). If the relevant evidence conclusively proves

the governmental entity’s immunity was not waived as to a claim, the trial court has no subject

matter jurisdiction to try that claim. See id. at 227–28; see also Harris Cnty. v. Sykes, 136 S.W.3d

635, 638 (Tex. 2004).

                                             ANALYSIS

       SAWS asserts it is shielded by governmental immunity, its immunity was not waived, and

the trial court should have granted its plea because the evidence conclusively proves there are no

constitutional or statutory waivers of its immunity from suit. We begin by examining SAWS’s

Second Plea to the Jurisdiction.

A.     Challenge to Jurisdictional Facts

       In its Second Plea to the Jurisdiction, SAWS challenges the existence of jurisdictional

facts: it contends the facts the Overbys pled fail to invoke any constitutional or statutory waiver of

immunity. See Miranda, 133 S.W.3d at 227. Therefore, we examine the jurisdictional facts to

determine whether the evidence conclusively decides, or raises a fact issue on, whether SAWS has

governmental immunity and its immunity has been waived. See Thomas v. Long, 207 S.W.3d 334,

338–39 (Tex. 2006) (recognizing that a plea to the jurisdiction is evaluated on a claim-by-claim

basis); see also Heckman v. Williamson Cnty., 369 S.W.3d 137, 145 (Tex. 2012) (same).



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       If SAWS has governmental immunity and the evidence conclusively proves SAWS’s

immunity was not waived as to either of the Overbys’ claims, then the trial court erred by denying

SAWS’s second plea to the jurisdiction. See Thomas, 207 S.W.3d at 338–39. We first determine

whether SAWS is shielded by governmental immunity.

B.     SAWS’s Immunity

       SAWS asserts it is entitled to governmental immunity. See City of Galveston, 217 S.W.3d

at 469. The City of San Antonio is a political subdivision of the state; as the City’s agent, SAWS

is generally entitled to governmental immunity for its performance of governmental functions.

Zacharie v. City of San Antonio, 952 S.W.2d 56, 59 (Tex. App.—San Antonio 1997, no writ). One

governmental function SAWS performs is sewer service. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.0215(32) (West Supp. 2013) (designating “water and sewer service” as governmental

functions); City of Dall. v. Jennings, 142 S.W.3d 310, 315 (Tex. 2004) (recognizing same).

Nevertheless, SAWS’s immunity may be waived by the constitution or by statute. See City of

Dall. v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011); Jennings, 142 S.W.3d at 313–14. Therefore,

we review the evidence for facts relevant to constitutional or statutory waivers. See Miranda, 133

S.W.3d at 227–28.

C.     Taking Claim

       SAWS’s immunity may be waived by the takings clause of the Texas Constitution. See

TEX. CONST. art. I, § 17; VSC, LLC, 347 S.W.3d at 236; Jennings, 142 S.W.3d at 315.

       1.      Applicable Law

       The constitution’s takings clause prohibits a governmental entity from exercising its

governmental powers to take, damage, or destroy a person’s property without either providing

adequate compensation or obtaining the owner’s consent. See TEX. CONST. art. I, § 17; Gen. Servs.

Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); see also Jennings, 142
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S.W.3d at 313–14. In effect, the takings clause waives governmental immunity for certain taking

claims. 2 VSC, LLC, 347 S.W.3d at 236; State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). To

prevail on a taking claim, the plaintiff must prove the “governmental actor acted intentionally to

take or damage property for a public use.” Holland, 221 S.W.3d at 643; accord Little-Tex, 39

S.W.3d at 598. Specifically, the plaintiff must prove

        the governmental entity physically damage[d] [the plaintiff’s] property in order to
        confer a public benefit . . . [and] (1) [knew] that [its] specific act [was] causing
        identifiable harm; or (2) [knew] that the specific property damage [was]
        substantially certain to result from an authorized government action—that is, that
        the damage [was] “necessarily an incident to, or necessarily a consequential result
        of” the government’s action.

Jennings, 142 S.W.3d at 314; accord City of San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex.

2009). Evidence of the governmental entity’s failure to avoid preventable damage may be

evidence of negligence, but it is not necessarily evidence of the entity’s intent to damage the

plaintiff’s property. See Pollock, 284 S.W.3d at 821; Jennings, 142 S.W.3d at 314.

        2.       No Requisite Intent

        For their taking claim, the Overbys complain that SAWS maintained the sewer system in

the alley for public use and SAWS knew the “the manner in which they have gra[d]ed the alley

[has] and would cause flooding into the [Overbys’] yard.” In Robert Overby’s deposition, he

testified that “if it was a heavy rain, [water] would come in [to his yard] from the alley. If it wasn’t

a heavy rain, [it would not].” Accepting the Overbys’ evidence as true and making reasonable

inferences in their favor, we assume SAWS knew its decision not to change the grade of the alley

could result in flood damage to the Overbys’ property in case of a heavy rain.




2
  The Overbys claim their property was damaged not taken. We recognize that a taking claim is separate from a
damaging claim, but we use the term “taking” as the parties have—to address the Overbys’ claim for damage to their
property. See Jennings, 142 S.W.3d at 313 n.2.

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       An analogous situation occurred in City of San Antonio v. Pollock. See Pollock, 284

S.W.3d at 812–15. In Pollock, the plaintiffs complained that the City committed a compensable

taking of their property because the City knew that migration of methane and benzene gases onto

the Pollock’s property from the City’s landfill was substantially certain to damage their property.

Id. at 821. The court rejected their argument as insufficient to establish the required intent:

       The [City’s] awareness of the mere possibility of damage is no evidence of intent.
       The damage the Pollocks claim—the migration of gas onto their property—is
       neither necessarily incident to [n]or a consequential result of the operation of a
       landfill. It can be prevented. The City’s negligent failure to prevent landfill gas
       migration in this case is no evidence that it intended to damage the Pollocks’
       property.

Id.

       Under Pollock, we must conclude that evidence of SAWS’s knowledge—that the alley’s

grade could cause water from the alley to flow onto the Overbys’ property during a heavy rain—

is no evidence of SAWS’s intent to damage their property. See id. Like in Pollock, the damaging

migration was preventable; the rain water and effluent migration that damaged the Overbys’

property was not “necessarily an incident to, or necessarily a consequential result of” SAWS

maintaining the sewer system in the alley. See id. Thus, there is no evidence that SAWS intended

to damage the Overbys’ property. See id. Absent such requisite intent, SAWS’s immunity was

not waived under the takings clause. See id.; Jennings, 142 S.W.3d at 314. We turn to the

Overbys’ nuisance claim.

D.     Nuisance Claim

       In his deposition, Robert Overby testified that SAWS left the alley surface in a “cup-shaped

ditch” that collects rainwater, which sometimes floods his yard, and that condition was a nuisance.

“[N]uisance liability arises only when governmental immunity is clearly and unambiguously




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waived.” Jennings, 142 S.W.3d at 316. We have already concluded that SAWS’s immunity was

not waived by the takings clause; thus we turn to whether SAWS’s immunity is waived by statute.

       1.      Statutory Waiver of Immunity

       The Overbys assert that SAWS’s immunity is waived by the Tort Claims Act, under section

101.0215(32) or section 101.021. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(1) (motor-

driven equipment), .0215(32) (sewer service). SAWS contends that section 101.021 does not

waive its immunity for the Overbys’ nuisance claim because there is no nexus between SAWS’s

use of any equipment and the Overbys’ injuries. See id. § 101.021(1).

       2.      Applicable Law

       The Tort Claims Act waives a municipality’s immunity for property damage proximately

caused by its sewer service if, inter alia, the damage “arises from the operation or use of . . . motor-

driven equipment.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A); Bellnoa v. City of

Austin, 894 S.W.2d 821, 826 (Tex. App.—Austin 1995, no writ) (recognizing that “the words

‘under this chapter’ limit the liability of the municipality for the listed functions under section

101.0215 to the conditions required under section 101.021” and holding that “section 101.0215 is

not an independent waiver of immunity”); accord City of Hous. v. Rushing, 7 S.W.3d 909, 914

(Tex. App.—Houston [1st Dist.] 1999, pet. denied) (en banc); Dalon v. City of DeSoto, 852 S.W.2d

530, 535 (Tex. App.—Dallas 1992, writ denied).

       But not all uses of motor-driven equipment are sufficient to waive immunity; to invoke a

waiver, there must be “a nexus between the operation or use of the motor-driven vehicle or

equipment and a plaintiff’s injuries.” Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543

(Tex. 2003); accord Tex. Parks & Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 235 S.W.3d 692, 694

(Tex. 2007) (per curiam). Motor-driven equipment “‘does not cause injury if it does no more than

furnish the condition that makes the injury possible.’” Whitley, 104 S.W.3d at 543 (quoting Dall.
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Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)). We

examine the relevant jurisdictional facts. See Miranda, 133 S.W.3d at 227–28.

        3.       Relevant Evidence

        The Overbys proffered evidence to show that (1) SAWS used motor-driven equipment to

maintain the alley, (2) the alley collected rainwater which sometimes floods their yard with

rainwater and sewage, and (3) this constitutes a nuisance. But the requisite nexus is not present.

See Whitley, 104 S.W.3d at 543; Bossley, 968 S.W.2d at 343. The evidence conclusively proves

that it was not SAWS’s use of motor-driven equipment to excavate, repair, and refill the alley that

damaged the Overbys’ property. Rather, it was the condition of the alley that led to their damage,

and a use of motor-driven equipment that results in a condition that causes an injury is not a

sufficient nexus. Cf. E.E. Lowrey Realty, 235 S.W.3d at 694 (determining that the State’s

immunity was not waived under section 101.021 because the plaintiff’s injury “relate[d] not to the

active use or operation of . . . motor-driven equipment but to the condition of state property”);

Whitley, 104 S.W.3d at 543 (same).

        Accepting the Overbys’ evidence as true, we nevertheless conclude that the evidence

conclusively proves a lack of nexus between SAWS’s use of motor-driven equipment and the

damage to the Overbys’ property. Absent such a nexus, SAWS’s immunity was not waived by the

Tort Claims Act. 3 See E.E. Lowrey Realty, 235 S.W.3d at 694; Whitley, 104 S.W.3d at 543.




3
 The Overbys also asserted that SAWS’s immunity was waived by its use of manhole covers and the sewer system.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (waiving immunity for “personal injury and death so caused
by a condition or use of tangible personal or real property”). The Overbys did not plead either personal injury or
death; no waiver of immunity applies. See id.; Tex. Parks & Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 235 S.W.3d
692, 694 (Tex. 2007); City of San Antonio v. Winkenhower, 875 S.W.2d 388, 390 (Tex. App.—San Antonio 1994,
writ denied).

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       4.      Trial Court Decision Improper

       Unless SAWS’s immunity from suit was waived, the trial court was required to grant its

plea to the jurisdiction and dismiss the Overbys’ claims. See Thomas, 207 S.W.3d at 338–39;

Miranda, 133 S.W.3d at 227–28. Having determined that SAWS’s immunity was not waived by

either the takings clause or the Tort Claims Act, we conclude that the trial court had no jurisdiction

to consider the merits of the Overbys’ taking and nuisance claims. See Thomas, 207 S.W.3d at

338–39; Miranda, 133 S.W.3d at 227–28.

                                           CONCLUSION

       SAWS is cloaked with governmental immunity, and is immune from suit and liability

absent an express waiver of immunity. Here, the evidence conclusively proves that SAWS’s

immunity from suit was not waived under either the takings clause or the Tort Claims Act. Thus,

the trial court erred in denying SAWS’s second plea to the jurisdiction as to the Overbys’ claims

for taking and nuisance. Accordingly, we reverse the trial court’s judgment and render judgment

that the Overbys taking nothing from SAWS on their taking and nuisance claims.



                                                   Patricia O. Alvarez, Justice




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