State v. the City of Galveston

Opinion issued September 10, 2004

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-03-00557-CV

____________

THE STATE OF TEXAS, Appellant

V.

THE CITY OF GALVESTON, Appellee

On Appeal from the 212th District Court

Galveston, County, Texas

Trial Court Cause No. 03CV0018

O P I N I O N

Appellant, the State of Texas, appeals from a final order granting the plea to

the jurisdiction of appellee, the City of Galveston (“the City”), and dismissing the

cause. We decide whether a municipality enjoys governmental immunity from the

State’s lawsuit for negligence and actual damages. Answering the question in the

negative, we reverse the order and remand the cause .

Standard of Review

In deciding a plea to the jurisdiction, a trial court considers the plaintiff’s

pleadings and any evidence pertinent to the jurisdictional inquiry. See Bland Indep.

Sch. Dist. v. Blue , 34 S.W.3d 547, 554-55 (Tex. 2000); see also Tex. Natural Res.

Conservation Comm’n v. White , 46 S.W.3d 864, 867-68 (Tex. 2001). We review de

novo a trial court’s ruling on a jurisdictional plea, construing the pleadings in the

plaintiff’s favor and looking to the pleader’s intent. See Tex. Natural Res.

Conservation Comm’n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002); Tex. Ass’n of

Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993) ; Junemann v. Harris

County , 84 S.W.3d 689, 693 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) .

Background

The parties submitted no evidence; thus, our facts come from the State’s

petition, viewed in the appropriate light. See Tex. Ass’n of Bus. , 852 S.W.2d at 446 .

The City and Galveston County asked the Texas Department of Transportation

(“TxDOT”) to build a roadway in Galveston County. As part of the agreement, the

City “provided for the adjustment of all utilities, including a municipal water line

which ran underneath a ramp approach and bridge deck of the roadway.” The

finished roadway was later designated as part of the State highway system. The

City’s waterline underlying the highway ruptured, causing erosion that threatened to

collapse the highway and its bridge structures. The State spent its funds to repair the

damage.

The State, on behalf of TxDOT, sued the City for negligence in the installation,

maintenance, and upkeep of the water line. The State sought actual damages of

$180,872.53, pre-judgment interest, attorney’s fees, and costs. The City asserted

governmental immunity from suit and filed a jurisdictional plea.

Specifically, the

City argued that it enjoyed governmental immunity from suit and that the State had

not pleaded a cause of action for which the Texas Tort Claims Act

(“TTCA”) waived

that immunity. The State responded on the ground that the City did not enjoy

governmental immunity from the State’s claims against it because the City’s

immunity derives wholly from that of the State. After a non-evidentiary hearing, the

trial court granted the City’s jurisdictional plea and dismissed the cause.

The City Does Not Enjoy Governmental Immunity from

the State’s Suit Asserting Negligence Claims for Actual Damages

Neither party disputes that the City performed a governmental function in

committing the acts alleged by the State to have been negligent. See Tex. Civ. Prac.

& Rem. Code Ann. § 101.0215(11), (32) (Vernon 1997 & Supp. 2004-2005)

(defining municipality’s governmental functions as including “waterworks” and

“water and sewer service”); see also City of Dallas v. Reata Constr. Corp. , 83 S.W.3d

392, 396 (Tex. App.—Dallas 2002) (holding that section 101.0215(11) and (32)

encompass the act of marking underground water delivery system), rev’d on other

grounds , No. 02-1031, 2004 WL 726906 (Tex. Apr. 2, 2004). A city’s performance

of a governmental function entitles it to immunity from suit brought by private parties

for tort damages arising out of that function’s performance, absent a waiver of that

immunity from suit in, for example, the TTCA. See, e.g. , Tex. Civ. Prac. & Rem.

Code Ann. §§ 101.021, 101.0215(a), 101.025 (Vernon 1997 & Supp. 2004-2005).

In its sole issue, the State maintains that the trial court erred in granting the

City’s jurisdictional plea because any immunity from suit that the City possesses, as

a political subdivision of the State, is an extension of the State’s own immunity from

suit and does not shield the city against the claims of the State itself. As the State

explains, the City’s immunity from suit “does not arise from any inherent sovereignty

of [its] own, but instead derives from [its] status as [a] political subdivisio[n] of the

State”; accordingly, the City impermissibly asserts “the State’s immunity against the

State itself .” From this premise, the State concludes that no waiver of immunity from

suit from within the TTCA is required for the State to sue the City for the latter’s

negligence.

A. Municipalities Derive Their Immunity From That of the State, as

Sovereign

We look to common-law principles to determine whether the City enjoys

governmental immunity from suit in this case. See Tex. A&M Univ.-Kingsville v.

Lawson , 87 S.W.3d 518, 520 (Tex. 2002) (“In Texas, the bar of sovereign immunity

is a creature of the common law and not of any legislative enactment.”) .

Municipalities are political subdivisions of the State. See Lake Charles Harbor

& Terminal Dist. v. Bd. of Trs. of Galveston Wharves , 62 S.W.3d 237, 246 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied); cf. Tex. Civ. Prac. & Rem. Code

Ann. § 101.001(3)(B) (Vernon Supp. 2004-2005) (“‘Governmental unit’ means: . .

. a political subdivision of this state, including any city . . . .”). S ince 1884,

municipalities have enjoyed immunity when performing governmental functions, but

not when performing proprietary functions. See, e.g. , City of Galveston v.

Posnainsky , 62 Tex. 118, 132-33 (1884) (first distinguishing between municipality’s

governmental and proprietary functions for purposes of immunity from tort claims ).

In reaching this holding, the Posnainsky court reasoned that

in so far as municipal corporations . . . exercise powers conferred on

them for purposes essentially public—purposes pertaining to the

administration of general laws made to enforce the general policy of the

state—they should be deemed agencies of the state , and not subject to

be sued for any act or omission occurring while in the exercise of such

power, unless, by statute, the action be given; that, in reference to such

matters, they should stand as does sovereignty, whose agents they are ,

subject to be sued only when the state, by statute, declares they may be.

Id. at 127 (emphasis added). The supreme court’s reasoning shows that

municipalities enjoy immunity from suit for governmental activity, not due to any

inherent sovereignty, but, rather, because the State cloaks them with the State’s

sovereign immunity from suit while they carry out the State’s public purposes. See

id. at 126-27 . Thus, any immunity from suit that a municipality enjoys derives solely

from the State’s immunity—the former receives immunity from suit only when

carrying out governmental activities implicitly delegated to it to carry out in the

latter’s stead. See id. at 128 ; cf. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)

(defining “governmental functions” as “those functions 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 . . . .”). Texas

courts have repeatedly noted or applied variations of the “derived immunity”

reasoning that the Posnainsky court first recognized.

Our sister court in Austin, based on a derived immunity reasoning, recently

resolved an issue similar to the one before us in favor of the State. See Tex. Workers’

Comp. Comm’n v. City of Eagle Pass/Tex. Mun. League Workers’ Comp. Joint Ins.

Fund , 14 S.W.3d 801, 806 (Tex. App.—Austin 2000, pet. denied). In Eagle Pass , the

Texas Workers’ Compensation Commission (“TWCC”), a statewide agency,

assessed administrative penalties against the city and its transportation authority

(“Capital Metro”) for their having made late benefits payments in violation of the

Labor Code. See id. at 803 . The city and Capital Metro were undisputedly “political

subdivisions.” See id. at 802-03, 805-06 . The city and Capital Metro admitted

violations, but claimed immunity from suit for administrative penalties under the

sovereign-immunity doctrine. See id. at 803 . The Austin Court of Appeals rejected

the assertion, holding instead that a defense of immunity from suit was “inapplicable”

to the State’s enforcement action:

[M]unicipalities are created as political subdivisions of the State and

“represent no sovereignty distinct from the state and possess only such

powers and privileges as have been expressly or impliedly conferred

upon them.” A municipality’s sovereignty is dependent upon that of the

State. . . . Because political subdivisions of the State do not possess such

independent sovereignty, they have no immunity as against the State.

Under the common law doctrine of immunity, municipalities and other

political subdivisions of the State possess limited immunity from actions

brought by private third parties. This immunity results from agency

principles and the fact that municipalities and political subdivisions are

agents of the State. A political subdivision’s immunity is a privilege

afforded it based on its existence as a subdivision of the State, and “[a]

municipality, as a political subdivision of the state , is not liable for the

acts or conduct of its officers or employees . . . .” Thus, a political

subdivision’s derivative immunity acts as a shield against actions

brought by private parties but not as a shield against the State, from

which the subdivision derives its immunity.

Id. at 803-04 (citations omitted; emphasis in original).

Cases from other jurisdictions support the Eagle Pass court’s holding and

apply similar reasoning to tort suits brought by the State. See Bd. of Educ. of Prince

George’s County v. Mayor & Common Council of the Town of Riverdale , 578 A.2d

207, 210 (Md. 1990) (in tort suit brought by state, after noting that plaintiff was “state

agency,” holding that “the immunity of . . . municipalities is derived from the State’s

sovereign immunity. . . . [T]he nature of governmental immunity for . . .

municipalities prevents them from asserting the defense of immunity when sued by

the State or a State agency.”); Ohio v. City of Bowling Green , 313 N.E.2d 409 , 412

& n.2 (Ohio 1974) (“[A municipality’s] immunity is derivative; it arises because the

municipality, when performing a governmental function, is acting as an arm or agent

of the state. . . . [W]here the injured party is the state itself, . . . the situation resembles

a suit by a principal against an agent whose negligence has resulted in damage to the

principal. In such a situation it would be illogical to allow the municipality to assert

its general tort immunity against the very source of that immunity.”).

We agree with the Eagle Pass court’s reasoning and its conclusion.

Accordingly, we hold that governmental immunity does not shield a municipality

from the State’s suit asserting tort claims for actual damages because any immunity

that a municipality enjoys derives from the State’s own immunity.

The City argues that we should distinguish this case from Eagle Pass because

(1) the Labor Code expressly subjected the Eagle Pass defendants to administrative

penalties, thus “accomplishing a clear and unambiguous waiver of whatever

[governmental] immunity [did] exist,” and (2) Eagle Pass involved administrative

penalties, rather than tort damages .

As for the first distinction, the City concedes that the Eagle Pass court did not

base its pertinent holding on the fact that the Code provided for administrative

penalties against political subdivisions. See Eagle Pass , 14 S.W.3d at 804 . Indeed,

the Eagle Pass court expressly concluded that governmental immunity simply did not

apply to TWCC’s imposition of penalties, and, thus, an analysis of statutory waiver

was unnecessary. See id. at 804 . If immunity from suit does not apply, then no

waiver of immunity from suit is necessary: one need not waive that which does not

exist.

Cf. Fed. Sign v. Tex. S. Univ. , 951 S.W.2d 401, 404 (Tex. 1997) (noting that private litigant does not need legislative permission to sue State for state official’s

violations of state law because such violations are not acts of State, so that suit “is not

a suit against the State that sovereign immunity bars”; thus concluding that “[a] party

can maintain a suit to determine its rights without legislative permission”),

superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little-Tex

Insulation Co. , 39 S.W.3d 591, 593 (Tex. 2001).

Like the City, Justice Keyes’s dissenting opinion argues that the Eagle Pass

court did not need to resolve its case on the basis of the political subdivisions’

derivative immunity, but could instead have resolved the case on the ground that the

Labor Code acted as a legislative waiver of immunity from suit. See Eagle Pass , 14

S.W.3d at 805 (in rejecting argument that, even if governmental immunity did not

apply, Labor Code still did not empower Commission to assess penalties against

political subdivisions, holding that the city and Capital Metro were “indisputedly

‘persons’ against which the Commission may assess an administrative penalty”). The

Eagle Pass court could have done so, but expressly did not. It did not do so evidently

because it—as do we—recognized that immunity from suit did not exist in the first

place. We thus reject Justice Keyes’s (and Justice Jennings’s) assertion that our

holding creates an exception to immunity from suit: we do not create an exception,

but instead recognize that no immunity from suit exists when the sovereign seeks

judicial redress. We similarly reject Justice Keyes’s argument that our holding “goes

well beyond” that of the Eagle Pass court for the reason that “there is no statutory

authority to support the majority’s decision that Galveston lacks immunity to

TxDOT’s tort claims, unlike the statutory authority provided by the Labor Code in

Eagle Pass .” The Eagle Pass court expressly declined to confine its pertinent

holding to an interpretation of the Labor Code’s authorization for the assessment of

penalties. See id. at 803-04 .

As for the second distinction, we recognize that Eagle Pass involved the

State’s assessment of administrative penalties, i.e. , the State’s regulatory authority,

rather than a tort suit brought by the State. See Eagle Pass , 14 S.W.3d at 803 . We

also recognize that tort claims and administrative penalties differ in important ways.

Nonetheless, the Eagle Pass court’s reasoning encompasses the State’s tort claims .

The fact that administrative penalties are fixed by statute, as the City notes, rather

than unliquidated, as tort damages generally are, does not change the logic upon

which Eagle Pass or derived immunity law is based. If a municipality does not enjoy

immunity from suit brought by the sovereign from whom its immunity derives, then

it should not matter whether the sovereign is seeking actual damages in tort or

administrative penalties. We also reject Justice Jennings’s argument that Eagle Pass

does not support our holding because its holding is allegedly limited to the context

of the State’s regulatory authority. To the contrary, the Eagle Pass court’s holding

is expressly broader than that, and its rationale and conclusion logically apply in any

context in which the State sues its political subdivision . See id. Accordingly, we

reject the City’s arguments distinguishing Eagle Pass .

B. The Policy Behind Governmental Immunity Supports the Conclusion that

the City Possesses No Immunity From the State’s Claim

The City further argues that holding that municipalities do not enjoy immunity

from the State’s tort claims conflicts with the policy reasons behind governmental

immunity. Sovereign immunity protects the public treasury by preventing the shifting

of tax resources away from their intended purposes and towards defending lawsuits

and paying judgments. See Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 695

(Tex. 2003); IT-Davy , 74 S.W.3d at 854 . We acknowledge that allowing the State to

recover damages from a municipality potentially shifts costs from the State to the

local level, depleting local coffers of funds that have already been budgeted for local

matters. This shifting, however, also replenishes other public funds—those allocated

in the state budget for public projects of the State and its agencies—that are lost due

to the municipality’s alleged fault. For purposes of immunity, therefore, tort suits by

the State differ in this significant respect from tort suits by individuals.

C. The State Has Brought this Suit in its Sovereign Capacity, and its Doing

So Does Not Violate the Separation-of-Powers Doctrine

The City alternatively argues that, even if it does not enjoy immunity from suit

from the sovereign’s tort claims, the City enjoys immunity from suit here because the

State did not bring this suit in its capacity as sovereign. The City reasons that (1) the

Judicial Department defers to the Legislature to waive sovereign immunity,

though

sovereign immunity is a centuries-old common-law creature of the Judiciary;

(2) the

Attorney General is a member of the Executive Department,

not the Legislative

Department; and (3) by making a claim against a municipality on behalf of a

department of the State, the Attorney General impermissibly is attempting to “share

the Legislature’s power to set the appropriate boundaries on suits for damages paid

by the people’s money out of state or local treasuries.” Similarly, starting from the

premise that the people, rather than any single state agency, constitute the sovereign,

the City further argues that the Attorney General has not appeared on behalf of the

“state as state,” but instead “has appeared merely on behalf of TxDOT—a constituent

state agency,” which the Legislature has “never empowered to exempt any city

functions from the general rule of governmental immunity.”

The City is thus arguing that TxDOT has not sued in the State’s sovereign

capacity and, alternatively, that if TxDOT is suing in the State’s sovereign capacity,

it is violating the Constitution’s separation-of-powers provision by doing so. See

Tex. Const. art. II, § 1. We address both arguments.

We first treat the City’s argument that the Attorney General does not represent

the State as sovereign in this suit, but is instead representing only “TxDOT—a

constituent state agency .” We agree that the people do constitute the sovereign ( i.e. ,

“the State”),

but it is indisputable that the people act as sovereign through the

branches, agencies, and departments of the state government that they have adopted.

See, e.g. , Tex. Const. art. I, § 2, art. II, § 1, art. III, § 1, art. IV, § 1, art. V, § 1. The

department of state government through which the sovereign people plan, construct,

and maintain their state highways (the property alleged to have been damaged here)

is TxDOT. See Tex. Transp. Code Ann. §§ 201.103(a), 201.601, 201.202(a)(2)

(Vernon 1999 & Supp. 2004-2005). TxDOT is considered “the State” because,

among other things, it has statewide jurisdiction and the governor appoints certain of

its governing officials .

Accordingly, the Attorney General does not appear “merely

on behalf of TxDOT” in this suit, but instead represents the interests of the sovereign

State of Texas .

This is, of course, the Attorney General’s job. His primary duties are “to render

legal advice in opinions to various political agencies and to represent the State in

civil litigation .” Perry v. Del Rio , 67 S.W.3d 85, 92 (Tex. 2001) (emphasis added);

see Tex. Const. art. IV, § 22 (“The Attorney General shall represent the State in all

suits and pleas in the Supreme Court of the State in which the State may be a party

. . . and give legal advice in writing to the Governor and other executive officers . . .

and perform such other duties as may be required by law.”); Tex. Gov’t Code Ann.

§ 402.021 (Vernon 1998) (“The attorney general shall prosecute and defend all

actions in which the state is interested before the supreme court and courts of

appeals.”); cf. Tex. Const. art. V, § 21 (as part of the Judicial Department, “[t]he

County Attorneys shall represent the State in all cases in the District and inferior

courts . . . .”). The Attorney General has thus been described as “the State’s chief

legal officer.” Del Rio , 67 S.W.3d at 92 . In appearing in this litigation , therefore, the

Attorney General is fulfilling his duty to represent the State in civil suits. Contrary

to the City’s argument, the Attorney General is not usurping legislative power by

“waiving” immunity from suit, but, rather, represents the position of the State, as its

advocate, that no immunity exists in the first instance for this type of claim. As the

State’s chief legal officer, it is within his ambit to seek legal redress in the courts on

behalf of the State.

As for the City’s contention that our holding allows the Attorney General (or

TxDOT) to violate the separation-of-powers doctrine

—a charge that the dissenting

opinion also asserts—we disagree. The City contends that allowing the Attorney

General , a member of the Executive Department, to sue effectively “waives”

immunity from suit, a power traditionally placed with the Legislature in our common-law precedent.

If the Attorney General sought a judicial waiver of the City’s immunity on the

State’s behalf, then he would have to defer to the Legislature to accede to such a

waiver. But the State and the Attorney General seek no such thing. Rather, they

contend that a political subdivision has no judicial immunity from the State’s suit to

begin with because the State is the supreme sovereign. Thus, we decide in this case

whether the City enjoys immunity from suit in the first instance . If the City does not

enjoy immunity from this type of suit at all, then there is no immunity from suit to

waive. If there is no immunity from suit to waive, then the Attorney General may

represent the State in this claim for redress.

See Tex. Const. art. IV, § 22; Tex.

Gov’t Code Ann. § 402.021 ; Del Rio , 67 S.W.3d at 92 . We will not judicially limit

the State’s power to seek redress absent legislative action or constitutional

amendment limiting the State’s power to do so.

D. Home-Rule Status Does Not Make a Municipality Its Own Sovereign for

Purposes of Immunity

The City argues that the home-rule amendment allows the City to enjoy

“immunity from suit and liability to the same extent as the State itself.” See Tex.

Const. art. XI, § 5 ; see also City of Galveston v. Giles , 902 S.W.2d 167, 170 (Tex.

App.—Houston [1st Dist.] 1995, no writ) (noting City of Galveston’s home-rule

status) .

The State of Texas added the home-rule amendment to the Texas Constitution

in 1912 . See 22 David B. Brooks, Texas Practice: Municipal Law & Practice

§ 1.17 (2nd ed. 1999) [hereinafter “ Brooks ”] ; Tex. Const. art. XI, § 5; see also Act

of March 31, 1913, 33rd Leg., R.S., ch. 147, § 4, 1913 Tex. Gen. Laws 307 , 310-16

(now appearing at Tex. Loc. Gov’t Code Ann. §§ 51.071-.079 (Vernon 1999 &

Supp. 2004-2005)) (enabling legislation). The purpose of the home-rule amendment

is “to bestow upon the cities coming under the . . . Amendment ‘full power of local-self government.’ . . . It was the intention . . . to give to cities the right to determine

for themselves what kind of charter they should live under.” City of Houston v. City

of Magnolia Park , 276 S.W. 685, 689 (Tex. 1925) (citation omitted); accord City of

Houston v. State ex rel. City of W. Univ. Place , 176 S.W.2d 928, 929 (Tex. 1943)

(quoting Magnolia Park ). The amendment was intended “to obviate the necessity of

[home-rule] cities coming to the Legislature whenever any change was desired in

their charters, and in order to facilitate selfgovernment . . . .” Anderson v. Brandon ,

47 S.W.2d 261, 262 (Tex. 1932); see City of Wichita Falls v. Cont’l Oil Co. , 1

S.W.2d 596, 597 (Tex. 1928) (noting that “primary purpose” of amendment was

“convenience and directness of this method of city government”). Accordingly, the

amendment eliminated the longstanding practice of having the Legislature grant and

amend special charters and instead allowed qualifying municipalities to adopt and to

amend their charters without legislative approval, as long as the charter did not

infringe upon the state Constitution or laws passed by the Legislature. See Tex.

Const. art. XI, § 5; Tex. Loc. Gov’t Code Ann. § 51.072 (Vernon 1999); City of

San Antonio v. City of Boerne , 111 S.W.3d 22 , 26 & 26 n.5 (Tex. 2003); Anderson ,

47 S.W.2d at 262 ; Brooks § 1.17 .

In carrying out these purposes, the home-rule amendment and its enabling

statutes authorized municipalities “to do anything [that] the legislature could

theretofore have authorized them to do.” Forwood v. City of Taylor , 214 S.W.2d 282,

286 (Tex. 1948) (describing home-rule municipality as “a delegate of legislative

power”) ; City of San Antonio , 111 S.W.3d at 26 n.5 . In this sense, home-rule cities

derive their powers from the Texas Constitution. See Proctor v. Andrews , 972

S.W.2d 729, 733 (Tex. 1998); Tex. River Barges v. City of San Antonio , 21 S.W.3d

347, 352 (Tex. App.—San Antonio 2000, pet. denied). Municipalities adopting a

home-rule charter thus have “the full power of self government” and look to the

Legislature only for limitations on their power. Perry v. Grenias , 95 S.W.3d 683, 694

(Tex. App.—Houston [1st Dist.] 2002, pet. denied) ; accord Giles , 902 S.W.2d at 170

(describing home-rule city’s powers as “plenary”) ; see Tex. Loc. Gov’t Code Ann.

§ 51.072 (a) (“The [home-rule] municipality has full power of local self-government.”).

Although the home-rule amendment grants municipalities powers of self-determination, it does not—as the City argues—transform municipalities into

independent sovereigns for purposes of immunity from suit. Indeed, the opposite is

true. L ike all municipalities, home-rule municipalities “‘represent no sovereignty

distinct from the state and possess only such powers and privileges as have been

expressly or impliedly conferred upon them.’” Lake Charles Harbor & Terminal

Dist. , 62 S.W.3d at 246 (quoting this holding of Payne v. Massey , 196 S.W.2d 493,

495 (Tex. 1946) , despite fact that City of Galveston is home-rule city); Eagle Pass ,

14 S.W.3d at 803 (holding same, despite fact that City of Eagle Pass is home-rule

city).

The home-rule amendment’s delegation of legislative authority did nothing

to change the nature of state sovereignty. Accordingly, home-rule municipalities’

immunity from suit for governmental functions does not arise from their home-rule

status, but instead devolves from the State’s sovereign immunity. See Eagle Pass , 14

S.W.3d at 803 -04. Simply put, the State of Texas, in contrast to the United States of

America , is not a federation of sovereign cities. Instead, the State of Texas is itself

the sole, superior sovereign. See Eagle Pass , 14 S.W.3d at 803 (“While it is well

established that sovereign immunity protects the federal government from state suits

and vice versa, this immunity stems from the basic precept of federalism that the

federal and several state governments each possess independent sovereignty.

Because political subdivisions of the State do not possess such independent

sovereignty, they have no immunity as against the State.” ).

If the City were correct that a home-rule municipality’s immunity is

coextensive with that of the State , the proprietary-governmental distinction that

consistently has been recognized for 120 years would disappear, so that a home-rule

municipality would enjoy immunity from tort suits arising from any activity that it

conducted—just as the State does

— not just for its governmental functions . Yet

courts have repeatedly cited Posnainsky , noted the common-law proprietary-governmental distinction, or applied that distinction in considering the immunity of

home-rule municipalities.

This is yet another reason that the City’s position cannot

be correct.

For these reasons, we reject the City’s arguments based on its home-rule status.

E. The Authority on Which the City Relies Does Not Control

Finally, the City relies on five opinions to support its argument that municipal

immunity from suit is not derived from the State’s or that a municipality enjoys

immunity from the State’s suit for tort damages.

The City first relies on Texas Department of Transportation v. Able , claiming

that the majority’s implicit rejection of an argument made by the dissent based on the

State’s “superior-sovereign” status indicates that a superior-sovereign (or derived

immunity) limit upon immunity does not exist . See id. , 35 S.W.3d 608 (Tex. 2000).

Able did not involve a suit by the State against a municipality, however, and the

majority’s opinion did not discuss or reject the dissenting justices’ analysis, but chose

to address the issues presented on different grounds.

The City next relies on Texas Department of Transportation v. City of Sunset

Valley . See id. , 92 S.W.3d 540 (Tex. App.—Austin 2002, pet. granted); see also Tex.

Dep’t of Transp. v. City of Sunset Valley , 8 S.W.3d 727 (Tex. App.—Austin 1999 , no

pet.) (earlier interlocutory appeal in same suit). In Sunset Valley , however, TxDOT

asserted that it enjoyed sovereign immunity from the city’s claims, which is the

inverse situation from that existing here. See id. , 8 S.W.3d at 732-33 . Nothing in the

derivative-immunity law originating with Posnainsky precludes the State from

asserting sovereign immunity from suit when it is sued by its own political

subdivision .

The City further relies on Guillory v. Port of Houston Authority . See id. , 845

S.W.2d 812 (Tex. 1993). In Guillory , the court rejected a private plaintiff’s request

to classify the port authority defendant’s activities as proprietary functions, so that

immunity would not be a bar, because (1) doing so would have required overruling

precedent holding that such districts exercised solely governmental functions and (2)

“the limitation on immunity which Guillory seeks has the same effect as a waiver,”

which the court concluded was a legislative matter. Id. at 814-15 . Here, however,

we do not waive or limit existing governmental immunity from suit. Instead, we

recognize that the State is constitutionally empowered to sue and that the City’s

governmental immunity from suits asserting such claims is wholly absent to begin

with .

Finally, the City relies on two cases in which a non-municipal political

subdivision sued a municipality for damages and in which the court assumed that

immunity from suit or liability applied. See Fort Worth Indep. Sch. Dist. v. City of

Fort Worth , 22 S.W.3d 831, 839-40 (Tex. 2000); City of Houston v. Northwood Mun.

Util. Dist. No. 1 , 73 S.W.3d 304, 313 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied) . We conclude that the cited cases do not apply in determining whether the

City enjoys immunity from suit here because neither case involves the State’s suing

a political subdivision. Absent a statutory definition to the contrary, political

subdivisions of the State are not, generally speaking, considered “the State.” See

Monsanto Co. v. Cornerstones Mun. Util. Dist. , 865 S.W.2d 937, 939-40 (Tex. 1993)

(“The ordinary meaning of ‘state’ . . . envisions an entity having statewide

jurisdiction, rather than an entity having local or limited jurisdiction. . . . ‘[A]

political subdivision differs from a department, board or agency of the State.’” )

(quoting Guar. Petroleum Corp. v. Armstrong , 609 S.W.2d 529, 531 (Tex. 1980)).

Generally speaking, for a governmental entity to be considered “the State,” the entity

must have statewide jurisdiction, have a governing person or body that is elected in

statewide elections or is appointed by a state official, and lack the power to assess or

to collect taxes. See Monsanto , 865 S.W.2d at 940-41 ; see also Guar. Petroleum , 609

S.W.2d at 531 . In contrast, political subdivisions normally have jurisdiction over

only a portion of the state, have members of their governing body who are elected in

local elections or are appointed by locally elected officials, and have the power to

assess and to collect taxes. See Monsanto , 865 S.W.2d at 940 ; see also Guar.

Petroleum , 609 S.W.2d at 531 .

We conclude that these general definitions of “the State” and “political

subdivisions” make sense in the context of determining immunity from suit in

lawsuits between governmental entities, and we adopt these definitions for that

specific context.

The plaintiffs in the cases cited by the City are political

subdivisions of the State or like entities with limited jurisdiction.

In contrast, we

do not have before us a suit between subdivisions of the State, but instead a suit by

the State against a political subdivision. The opinions that amici curiae offer in

support of the City’s position are similarly distinguishable because, in them, the

plaintiff is a political subdivision or a private entity or because the defendant or

counter-defendant is a statewide agency.

Conclusion

We hold that a municipality—even a home-rule one—does not enjoy

governmental immunity from the State’s suit for negligence against it. Just as the

decision to waive or to abrogate immunity from suit lies with the Legislature or the

people through Constitutional amendment, so does the decision to limit the State’s

power to sue and to seek redress upon behalf of the people of Texas in Texas courts.

Our holding today recognizes that the sovereign State possesses the authority to seek

redress in its courts against its own political subdivisions and that they possess no

blanket immunity from suit in such situations.

We do not address the State’s wisdom in bringing a claim in tort, but only its

authority to do so. Ultimately, the State, as sovereign, is empowered to seek redress

and to enforce state law. Without such authority, political subdivisions of the State

would adopt the mantle of independent sovereigns over whom the State, through its

chief legal officer, could seek no redress.

We reverse the order and remand the cause with instructions for the trial court

to reinstate the cause and to deny the City’s jurisdictional plea .

Tim Taft

Justice

Pa nel consists of Justices Taft, Keyes, and Bland.

Justice Keyes, dissenting.

En banc consideration was requested. See Tex. R. App. P. 41.2(c).

A majority of Justices voted against en banc consideration. See id.

Justice Jennings, dissenting from the denial of en banc consideration.