                                  NO. 07-04-0520-CV

                            IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 NOVEMBER 2, 2005

                          ______________________________

                           CITY OF BORGER, APPELLANT

                                           V.

    SOUTHERN INSURANCE COMPANY A/S/O MAXINE STULLER, APPELLEE

                        _________________________________

          FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

                 NO. 35,437; HONORABLE WILLIAM SMITH, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL, JJ.1


                            ON MOTION FOR REHEARING


      The motion for rehearing filed by appellant City of Borger is overruled. Our opinion

of August 26, 2005 in this appeal is withdrawn, and the following is substituted as the

opinion of the Court.




      1
        Former Chief Justice Phil Johnson was on the panel that heard oral argument.
He did not participate in the decision. Tex. R. App. P. 41.1(b).
       The City of Borger brings this interlocutory appeal from the denial of its plea to the

jurisdiction on the basis of sovereign immunity in a suit for property damage resulting from

demolition of a building. We will affirm.


       In August 1999, the City of Borger building official determined that a building located

on Main Street in Borger fell below the city’s building code in several respects and was

beyond repair. In July 2000, an architect issued his opinion the building was beyond repair

and that it could be demolished without damaging the adjacent building. The City, a home-

rule municipality, made a decision to demolish the building.          It hired Howell Sand

Company, Inc. (HSCI) to perform the demolition and notified the owner of the adjacent

building, Maxine Stuller, of the proposed demolition.


       HSCI demolished the building in early May 2001. The City’s primary involvement

in the demolition was removal of debris and delivering dirt to fill a basement. All other work

was performed by HSCI. Stuller asserted the demolition caused damage to her building.

Southern Insurance Company paid a claim for that damage and brought suit against the

City as subrogee of Stuller. Southern’s live petition alleges the City owned the demolished

building, and alleges the demolition was a proprietary function of the City.


       The City answered and filed special exceptions, arguing Southern failed to allege

facts demonstrating the court’s jurisdiction and failed to plead facts supporting waiver of

sovereign immunity, and a plea to the jurisdiction reasserting its claim of sovereign

immunity. The City now appeals from the trial court’s denial of that plea. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2005).


                                              2
       The City presents six arguments in support of its single issue challenging denial of

its plea to the jurisdiction. The first and fifth arguments discuss whether the City was

performing a governmental function.        The remaining arguments concern waiver of

sovereign immunity and Southern’s taking claim under the Texas Constitution.


       A plaintiff bears the burden to allege facts affirmatively demonstrating the trial

court’s jurisdiction. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993). When considering whether the plaintiff has done so, we are to construe

the pleadings liberally in the plaintiff’s favor. Texas Dep't of Parks and Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). Courts deciding pleas to the jurisdiction are not required

to look solely to the pleadings but may consider evidence and must do so when necessary

to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

555 (Tex. 2000). When jurisdictional facts are undisputed a trial court’s jurisdiction is a

question of law. Miranda, 133 S.W.3d at 226.


       As political subdivisions of the state, municipalities enjoy governmental immunity

when exercising governmental functions. City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.

1997); City of San Antonio v. Butler, 131 S.W.3d 170, 177-78 (Tex.App.–San Antonio

2004, pet. filed); City of Lubbock v. Adams, 149 S.W.3d 820, 823 (Tex.App.–Amarillo

2004, pet. filed). Since 1987 the legislature has delineated those governmental functions

affording immunity and the proprietary functions of a municipality for which it does not have

immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (Vernon 2005). Subsection

(a) of Section 101.0215 defines governmental functions as including those “enjoined on



                                              3
a municipality by law” to be exercised in the interest of the general public, and lists thirty-six

specific functions as governmental. Id. Subsection (b) describes proprietary functions as

“those functions that a municipality may, in its discretion, perform in the interest of the

inhabitants of the municipality,” listing examples of public utilities, amusements, and

abnormally dangerous or ultrahazardous activities. Id.


       The City presented evidence in support of its plea to the jurisdiction, and relies

primarily on the affidavit of its building official Larry Mullenix, which states that he inspected

the building and determined it was in a deteriorated condition and failed to comply with the

current building code. The affidavit further states, “As a result of my opinion that the

Building was unsafe and could not be repaired to meet building code standards, the City

chose to demolish the Building.”


       Southern’s allegation that the City owned the demolished building is supported by

an affidavit from Stuller. The City has not contradicted the contention.2 Its evidence does

not address the ownership of the demolished building. Mullenix’s affidavit refers to it

simply as “the building located at 325 N. Main.” The building apparently was unoccupied,

and its function is not addressed in the record.


       The City contends the undisputed evidence establishes its demolition of the building

was the exercise of a governmental function. Southern argues the evidence shows the



       2
        If the City owned the building, it apparently had not always done so. The record
contains a letter from Mullenix to Stuller referring to the building as the Johnson Bakery
Building. That letter and Mullenix’s affidavit also refer to the presence of an oven in the
building.

                                                4
City was engaged in a proprietary function. We disagree with both positions, concluding

the record developed thus far does not permit resolution as a matter of law of the

jurisdictional issues raised, and so affirm the trial court’s denial of the City’s plea to the

jurisdiction.


         The City argues that the supervision of the construction, maintenance and repair of

buildings comes within the city’s police power delegated by the state, citing City of Tyler

v. Ingram, 164 S.W.2d 516, 519 (Tex. 1942). The argument is too broad. Ingram dealt

with temporary bleachers erected in a city park by a private party for an event sponsored

by that party. Id. at 519. Ingram does not support a contention that every such action

taken by a municipality relating to a building is governmental conduct,3 regardless of the

building’s ownership or use.


         The City also argues the evidence demonstrates that its demolition of the building

constituted the exercise of the functions of health and sanitation services or building codes

and inspections. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.0215(a)(2), (28) (Vernon

2005).       On this record, we cannot agree that the City’s demolition of the building

reasonably can be characterized as exercising either of those functions.4


         3
       The facts here are thus to be distinguished from those presented in City of Pampa
v. Pampa Properties Corp., No. 07-00-0407-CV, 2001 WL 55623 (Tex.App.–Amarillo
January 21, 2001, no writ). There, the plaintiff’s damages arose from street construction,
a listed governmental function. See Tex. Civ. Prac. & Rem. Code Ann.
§101.0215(a)(3)(Vernon 2005).
         4
        The present state of the record, for instance, does not permit consideration of how
the City’s decision to demolish an unsafe building that could not be repaired to meeting
building code standards differed from a similar decision by any other premises owner, if
indeed the City was the premises owner in this case.

                                              5
       The City refers also to the statutory authority given home-rule municipalities to

define and prohibit nuisances, and to enforce ordinances necessary to the prevention and

abatement of nuisances, as showing it was performing functions enjoined on it by law,

citing Tex. Loc. Gov’t Code Ann. §§ 217.041-.042 (Vernon 2002). We similarly find the

evidence presented thus far insufficient to demonstrate that the City’s actions were

encompassed within a governmental function relating to abatement of nuisances. 5


       By Section 101.0215 the legislature has defined almost all the functions of a

municipality as governmental. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 83 (Tex.

1997) (Hecht, J., concurring). See also Butler, 131 S.W.3d at 177-78; Mitchell v. City of

Dallas, 855 S.W.2d 741, 744 (Tex.App.–Dallas 1993), aff’d, 870 S.W.2d 21 (Tex. 1994)

(rejecting narrow application of listed governmental functions). Further development of the

facts may demonstrate that the damages claimed arise from a governmental function of

the City. See Spindletop MHMR v. Doe, 54 S.W.3d 893, 895-96 (Tex.App.–Beaumont

2001 pet. denied) (pointing out state agency could reassert immunity defense if evidence

later demonstrated that under “specific facts” of case, sovereign immunity was not waived).

See also Miranda, 133 S.W.3d at 227-28 (discussing timing of jurisdictional determination).

Based on the record before us, though, we find the trial court did not err in denying the




       5
         Again, Southern’s evidence the City owned the demolished building suggests that
any nuisance maintained there may have been maintained by the City. The City does not
cite us to authority holding that abatement by a city of a nuisance also maintained by a city
is a governmental function as a matter of law.

                                             6
City’s plea to the jurisdiction.6 We overrule the City’s sole issue, affirm the trial court’s

order and remand the case to the trial court for further proceedings.



                                                   James T. Campbell
                                                       Justice




       6
          The City’s plea to the jurisdiction dealt also with the taking claim Southern alleged
under the Texas Constitution based on the damage to Stuller’s property. Tex. Const. art
I, § 17; Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980). Our affirmance of the trial
court’s denial of the City’s plea to the jurisdiction with respect to Southern’s negligence
claim makes it unnecessary for us to address the trial court’s jurisdiction over the taking
claim, and we express no opinion on the validity of the plea to the jurisdiction as addressed
to that claim.

                                              7
