the City of Keller v. John W. Wilson, Grace S. Wilson, Johnny L. Wilson, and Nancy A. Wilson

[COMMENT1]

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-00-183-CV

THE

CITY OF KELLER APPELLANT

V.

JOHN

W. WILSON, APPELLEES

GRACE S. WILSON,

JOHNNY L. WILSON, AND

NANCY

A. WILSON

------------

FROM THE 96TH

DISTRICT COURT OF TARRANT COUNTY

------------

OPINION ON REMAND AND ON

REHEARING EN BANC

------------

I.

Introduction

We grant the City of Keller = s

motions for rehearing and en banc rehearing, withdraw our opinion and judgment

of June 22, 2006, and substitute the following.

John W. Wilson, Grace S. Wilson, Johnny L.

Wilson, and Nancy A. Wilson sued the City for inverse condemnation and water

code violations. The Supreme Court of

Texas remanded this case to us after rendering judgment that there is no

evidence supporting the intent element of the Wilsons = inverse

condemnation claim. [1] In our initial opinion on remand, we

addressed the City = s seventh issue on appeal, which

challenges the legal and factual sufficiency of the evidence to support the

jury = s finding

that the City violated section 11.086 of the Texas Water Code because it A diverted

the natural flow of surface water in a manner that damaged @ the

Wilsons =

property. [2] We held, with one justice dissenting, that

there is legally and factually sufficient evidence to support this finding and

affirmed the trial court = s judgment on the Wilsons = water

code violation claim. [3]

In its motion for rehearing, the City argues that

the Wilsons cannot recover from the City on their water code violation claim

because the City is immune from suit on that claim. [4] Because we conclude that the City is immune

from suit on the Wilsons = water code violation claim and

that neither the Legislature nor the City has waived the City = s

immunity from suit, we dismiss the claim and vacate the trial court = s

judgment for the Wilsons on that claim.

II.

Factual Background

The Wilson property is located southeast of the

Oak Run and Rancho Serena subdivisions in the City of Keller. A piece of land owned by A.T. Sebastian lies

between the Wilson property and the subdivisions. In 1991, before the Oak Run and Rancho Serena

subdivisions were built, the City approved a Master Drainage Plan providing for

drainage easements across both the Wilson and Sebastian properties into the

Little Bear Creek Watershed. The City = s codes

require developers to comply with the Master Plan, to provide drainage for a

100‑year rain event, and to avoid increasing the volume or velocity of

water discharged upon downhill properties.

The developers of Oak Run and Rancho Serena

submitted plans to the City indicating that they would buy a drainage easement

and build a ditch forty‑five feet wide and more than two hundred yards

long across the Sebastian property and deed both to the City upon

completion. The plans also included

detention basins on the subdivision properties, but they omitted any drainage

easement or ditch across the Wilson property.

The City = s director of public works

approved the developers = plans, and the City accepted

the works upon their completion.

In

accordance with the Master Plan, the City built a box culvert south of the

Wilson property, but because the developers = drainage ditch ended at the Wilsons = north property line,

there was no link between the ditch and the box culvert. The Wilsons alleged and the jury found that

this omission caused the diversion of the natural flow of surface water across

the Wilson property, ruining eight acres of farmland that the jury valued at

almost $300,000.

III. Sovereign Immunity From Suit

The City argues that the Wilsons = claim

against it under section 11.086 of the water code is barred by sovereign

immunity and that its immunity has not been waived because there is no clear

and unambiguous language in the water code that evidences legislative intent to

waive immunity.

Section 11.086 of the water code provides,

(a) No person may divert or impound the natural

flow of surface waters in this state . . . in a manner that damages the

property of another by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an

overflow of water caused by an unlawful diversion or impounding has remedies at

law and in equity and may recover damages occasioned by the overflow. [5]

In Texas, sovereign immunity deprives a trial

court of subject matter jurisdiction for lawsuits in which the state or certain

governmental units have been sued unless the state consents to suit. [6] A municipality is immune from suit for torts

committed in the performance of its governmental functions. [7] A plaintiff who sues a governmental entity

must establish the consent to suit. [8]

Subject matter jurisdiction is essential to a

court = s

authority to decide a case. [9] It cannot be waived and may be raised for the

first time on appeal. [10] Whether a court has subject matter

jurisdiction is a question of law. [11] If a trial court lacks subject matter

jurisdiction over a claim, the claim must be dismissed. [12] Therefore, unless the Legislature has waived

the City = s

sovereign immunity from suit for the Wilsons = claim

that the City violated the water code by diverting surface water across the

Wilson property, the trial court had no subject matter jurisdiction over that

claim, and we must dismiss it.

A. Clear and Unambiguous Waiver of Sovereign

Immunity

in

the Statute = s Language

It is well-settled law in Texas that for the

Legislature to waive a municipality = s

sovereign immunity from suit, the statute at issue must contain a clear and

unambiguous expression of the Legislature = s waiver

of immunity. [13] In 2001, the Legislature codified this

standard by adding section 311.034 to the Code Construction Act, which provides

as follows: A In order

to preserve the legislature = s

interest in managing state fiscal matters through the appropriations process, a

statute shall not be construed as a waiver of sovereign immunity unless the

waiver is effected by clear and unambiguous language. @ [14]

The water code does not contain the type of

language that the Legislature generally uses to confirm its intent to waive

immunity from suit. [15] We must, therefore, examine four factors

promulgated by the supreme court to determine whether the water code contains

otherwise clear and unambiguous waiver language. [16] First, the supreme court has held that a

statute that waives immunity must do so A beyond doubt, @ although the

statute need not be a model of perfect clarity. [17] Second, when construing a statute that

purportedly waives sovereign immunity, the supreme court generally resolves

ambiguities by retaining immunity. [18] Third, if the Legislature requires the State

to be joined in a lawsuit for which immunity would otherwise attach, the

supreme court has held that the State = s sovereign

immunity has been intentionally waived. [19] The fourth factor the supreme court considers

when deciding whether the Legislature intended to waive sovereign immunity is

whether the statute provides an objective limitation on the State = s potential

liability in order to insulate public resources from the reach of judgment

creditors. [20] If such a limitation exists, the court is

likely to find waiver. [21]

We will now apply these principles to determine whether the

Legislature waived the City = s sovereign

immunity from suit by enacting section 11.086 of the water code.

The Wilsons contend that the Legislature expressly waived

the City = s sovereign

immunity because the term A person @ in section

11.086(a) includes municipalities. The

Wilsons acknowledge that the term A person @ is not expressly

defined in the water code. They observe,

however, that section 1.002 of the water code provides that section 311.005 of

the government code applies to the water code, [22]

and that section 311.005 of the government code defines A person @ to include A government

or governmental subdivision or agency. @ [23] According to the Wilsons, by incorporating

the government code = s definition of person into

section 11.086(a) of the water code, the Legislature clearly and unambiguously

meant to waive the City = s immunity from suit.

The Supreme Court of Texas has held, however, that

the mere incorporation of a definition from one statute into another that

includes both private and governmental entities does not clearly express

legislative intent to waive the governmental entities =

immunity from suit. [24] For example, in Wichita Falls State

Hospital v. Taylor, the supreme court held that the Legislature = s

authorization of a suit against a A mental

health facility @ in section 321.003 of the

health and safety code (the patient = s bill

of rights) was not a clear and unambiguous waiver of sovereign immunity. [25] A Mental

health facility @ is not defined in chapter 321

of the health and safety code; instead, the statute incorporates the definition

of mental health facility found in section 571.003 of the health and safety

code, which includes both private and governmental entities. [26] Upon concluding that the patient = s bill

of rights does not waive the State = s

immunity beyond doubt because the statute achieved its stated objective of

regulating private treatment facilities even if suit against the State is

barred by immunity, the supreme court held,

At best, the incorporation of section 571.003 into section 321.001 [27]

sewed ambiguity into the statute. But in

cases like this, we require the Legislature to express its intent beyond doubt

and will construe ambiguities in a manner that retains the State = s immunity. . . . The statute = s ambiguity precludes our

finding an unmistakable Legislative intent to waive sovereign immunity. [28]

Likewise, the water code = s

incorporation of the definition of A person @ from

section 311.005 of the government code does not waive the City = s

immunity beyond doubt. The water code = s

provisions undoubtedly apply to private individuals and entities, so they are

not without meaning or purpose if they are construed against waiver. Moreover, the incorporation of section

311.005 of the government code into the water code creates an ambiguity. [29] In such a case, we must construe any

ambiguities in a manner that retains the City = s

immunity. [30] The water code = s

ambiguity with regard to the use of A person @

precludes our finding A an unmistakable legislative

intent to waive immunity. @ [31]

The third factor we must consider is whether the

statute requires the governmental entity to be joined in the lawsuit. [32] Nothing in chapter 11 of the water code

requires the government to be joined in a lawsuit for a water code violation

arising out of the alleged diversion of surface waters onto a person = s

property. [33] The lack of such a requirement is yet another

indication that the Legislature did not intend to waive immunity simply by

incorporating the government code = s

definition of person into water code section 11.086. [34]

The final factor we consider is whether the

statute provides an objective limitation on the State = s potential

liability. [35] When the Legislature waives immunity, it

generally includes in the statute a measure designed to protect the public

treasury from the consequences of the waiver. [36] Chapter 11 of the water code contains no such

provision. Therefore, the fact that the

Wilsons = construction

of the water code would subject the City to indeterminate damages awards

without limitation reinforces our conclusion that the Legislature did not

intend to waive sovereign immunity by mere implication. [37]

For all of these reasons, we hold that the Legislature = s incorporation of

the definition of A person @ from

government code section 311.005 into the water code does not

constitute a clear and unambiguous waiver of immunity from suit for a violation

of water code section 11.086(a). [38]

B. Waiver of Sovereign Immunity by Praying for

Costs and Attorney = s Fees

The Wilsons contend that, even if the Legislature

did not waive the City = s immunity from suit in the

water code itself, the City waived its immunity by requesting in the prayer of

its answer that it A recover its costs and attorney = s fees,

as well as any other relief, at law and equity, to which it is justly entitled. @

Recently, in Reata Construction Corp. v. City

of Dallas, the supreme court held that a city can waive its immunity from

suit if it A has joined into the litigation

process by asserting its own affirmative claims for monetary relief. @ [39] In that situation, the municipality A leave[s]

its sphere of immunity from suit for claims against it which are germane to,

connected with and properly defensive to the claims the City asserts. @ [40] To qualify as a claim for affirmative relief,

the supreme court has held that a defensive pleading must allege that the

defendant has a cause of action, independent of the plaintiff = s claim,

on which the defendant could recover benefits, compensation, or relief, even

though the plaintiff may abandon his cause of action or fail to establish it. [41]

In this case, the City = s

defensive pleadings do not urge a counterclaim against the Wilsons. Nor has the City asserted a cause of action,

independent of the Wilsons = water

code claim, on which it could obtain relief even if the Wilsons abandoned or

failed to establish their claim. Unlike

a defensive claim for attorney = s fees

in a declaratory judgment action, the City = s prayer

for attorney = s fees has no basis in a

statute, a common-law theory of recovery or an equitable claim for relief, and

it would not be sufficient to support recovery of attorney = s fees

if the Wilsons = claim were nonsuited or

dismissed. [42] Therefore, we hold that the City did not

waive its sovereign immunity from suit by including in its defensive pleading a

prayer for costs and attorney = s fees.

VI. Conclusion

Because the Legislature did not

waive the City = s immunity from suit for the

Wilsons = water

code violation claim, and because the City did not waive its immunity by requesting

costs and attorney = s fees in the prayer of its

defensive pleading, we hold that the trial court lacked subject matter

jurisdiction over the Wilsons = water

code violation claim. Therefore, we

vacate the trial court = s judgment for the Wilsons on

their water code violation claim and dismiss that claim. [43]

JOHN

CAYCE

CHIEF

JUSTICE

EN BANC

LIVINGSTON, J. filed a

concurring and dissenting opinion in which

DAUPHINOT, J. joined.

WALKER, J. filed a

dissenting opinion in which MCCOY, J. joined.

DELIVERED: March 1, 2007

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-00-183-CV

THE CITY OF KELLER APPELLANT

V.

JOHN W. WILSON, GRACE S. WILSON, APPELLEES

JOHNNY L. WILSON, AND

NANCY A. WILSON

------------

FROM THE 96TH

DISTRICT COURT OF TARRANT COUNTY

------------

CONCURRING AND DISSENTING

OPINION ON

REMAND AND ON

REHEARING EN BANC

------------

I respectfully concur and dissent to the majority

opinion for four reasons.

First, this court is being asked to entertain a

plea to the jurisdiction on remand from the Texas Supreme Court. This is the first time that the City of

Keller has actually asked this case to be dismissed due to a lack of

jurisdiction despite the case having been tried to a jury, appealed to this

court, and reviewed in the supreme court.

This case has been pending for over six years and only on remand from

the supreme court did the City pursue its plea as to this claim. 1

While we are required to sua sponte determine our

own jurisdiction and that of the trial court, it is difficult to see the equity

in the City = s pursuit of the issue at this

late date. Parties and courts should

determine jurisdiction at the earliest possible moment to prevent or limit

waste of judicial resources and the expense of unnecessary litigation. See Tex. Dep = t of

Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex.

2004); City of Kemah v. Vela , 149 S.W.3d 199, 202 (Tex. App. C Houston

[14th Dist.] 2004, pet. denied). We are

being asked to rule today on an issue that the trial court never ruled

upon. Usually, this would preclude

appellate review of such a complaint. See

Tex. R. App. P. 33.1(a); Bushell

v. Dean , 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh = g). However, because lack of jurisdiction relates

to fundamental error, we are required to address it, even now. See Wal-Mart Stores, Inc. v. Alexander,

868 S.W.2d 322, 328 (Tex. 1993).

Moreover, had the City urged this issue in the

trial court originally, the Wilsons would have been afforded an opportunity to

replead in order to more clearly assert additional jurisdictional facts and

theories. See Miranda, 133 S.W.3d

at 226-27 ; Hammons v. City of Krugerville , No. 02-04-00353-CV, 2005 WL

2838602 , at *1 (Tex. App. C Fort Worth Oct. 27, 2005, pet.

denied) (mem. op.); see also Cronen v. Ray , Nos. 14-05-00788-CV,

14-05-00789-CV, 2006 WL 2547989 , at *3 (Tex. App. C Houston

[14th Dist.] Sept. 5, 2006, no pet. h.).

Subject matter jurisdiction cannot be conferred

by waiver or estoppel at any stage of a proceeding. Juarez v. Tex. Ass = n of

Sporting Officials , 172 S.W.3d 274, 278 (Tex. App. C El Paso

2005, no pet.). Generally, one

may not assert estoppel against a city where such would interfere with a city = s

performance of a governmental function. City

of White Settlement v. Super Wash, Inc. , 198 S.W.3d 770, 773-74 (Tex.

2006). However, the Texas Supreme Court

acknowledged that it has recognized a very limited exception to this rule A where

justice requires its application, and there is no interference with the

exercise of [a city = s] governmental functions. @ Id. at 774 (citing City of Hutchins

v. Prasifka, 450 S.W.2d 829, 836 (Tex. 1970)); City of Dallas v.

Rosenthal, 239 S.W.2d 636, 646 (Tex. Civ. App. C Dallas

1951, writ ref = d n.r.e.). Estoppel may be asserted against a city when A justice

requires @ and

claimants might otherwise be completely denied relief. Super Wash, 198 S.W.3d at 775 .

Here, the Wilsons will be denied the judgment the

jury rendered in their favor, i.e., all relief, if the City = s late

pursuit of its jurisdictional challenge is granted. Further, the Wilsons have been denied their

right to replead their jurisdictional basis because of the City = s delay

and failure to timely pursue its jurisdictional challenges in the trial

court. The majority opinion accepts this

result even though a timely raised jurisdictional challenge would have afforded

the Wilsons the opportunity to replead. While I acknowledge we cannot establish

a court = s

jurisdiction by estoppel, we could estop the City from complaining should we

allow the Wilsons the opportunity to replead and have the case retried, if

necessary. When we apply the dictates of

Super Wash , we can see that there is no interference with the City = s

governmental functions by estopping the City from this type of procedural

complaint.

Second, I believe that the majority opinion

overstates the immunity a municipality has for its governmental functions. The majority says that a municipality is

immune from suit for torts committed in the performance of governmental

functions, citing the supreme court = s recent

opinion of Tooke v. City of Mexia.

197 S.W.3d 325, 343 (Tex. 2006).

Under the common law, this would have been a correct blanket

statement. City of Tyler v. Likes ,

962 S.W.2d 489, 501 (Tex. 1997). But

under the current Texas Tort Claims Act, section 101.0215 provides for a

limited waiver of a municipality = s

immunity from liability for damages arising from its governmental functions up

to the damages caps if the cause of action arises from conduct that otherwise

falls within the classes of waiver of immunity authorized by the Act. Tex.

Civ. Prac. & Rem. Code Ann. '

101.0215(a) (Vernon 2005); McKinney v. City of Gainesville , 814 S.W.2d

862, 865 (Tex. App. C Fort Worth 1991, no writ). Therefore, if the alleged conduct falls

within a governmental function category, we must then look to see whether the

conduct alleged also falls within one of the other provisions of chapter 101

that waives immunity. See Tex. Civ. Prac. & Rem. Code Ann. ' '

101.021-.022 (Vernon 2005 & Supp. 2006); Miranda, 133 S.W.3d at 225 ;

City of Fort Worth v. Gay , 977 S.W.2d 814, 817 (Tex. App. C Fort

Worth 1998, no pet.); McKinney, 814 S.W.2d at 865 .

Restated, a municipality waives its

immunity from liability, up to the caps,

for A damages arising from its

governmental functions @ if that conduct

otherwise falls within the Texas Tort Claims Act. Vela , 149 S.W.3d at 203 n.1; see

Martinez v. City of San Antonio , No. 04-05-00775-CV, 2006 WL 3497250, at *5

(Tex. App. C San Antonio Dec. 6, 2006, no

pet.); Pakdimounivong v. City of Arlington , No. 02-05-00414-CV, 2006 WL

3438218, at *4 (Tex. App. C Fort Worth Nov. 30, 2006, no

pet. h.); McKinney , 814 S.W.2d at 865 .

Additionally, we know that section 101.025 of the Act waives sovereign

immunity from suit C including governmental immunity

from suit C to the extent liability is

waived under chapter 101. Tex. Civ. Prac. & Rem. Code Ann. '

101.025. Therefore, should we determine

that liability exists for some governmental function conduct then, in that

event, immunity from suit would also be waived.

See id.; Miranda 133 S.W.3d at 224 .

Third, I do not agree that the amendment to

section 311.034 of the code construction act applies to this case as claimed by

the majority opinion. Tex. Gov = t Code Ann. ' 311.034

(Vernon Supp. 2006). That provision,

which states that A a statute shall not be construed

as a waiver of sovereign immunity unless the waiver is effected by clear and

unambiguous language, @ was not effective until June

2001; the judgment in this case was entered in March 2000, well before the

statute = s

effective date. Thus, I believe we should apply the common law standard

espoused in City of La Porte v. Barfield. 898 S.W.2d 288, 291 (Tex. 1995) (holding

similarly that we look to whether the language waiving governmental immunity is

clear and unambiguous, in light of legislative intent).

Lastly, I do not agree with all of the majority = s

analysis on each of the Wichita Falls State Hospital v. Taylor factors

we are to apply in trying to determine if the legislature intended for a

statute C here,

the water code C to waive governmental

immunity. 106 S.W.3d 692, 697-98 (Tex.

2003).

The third Taylor factor asks whether the

statute involved requires the government to be joined in the litigation. 106 S.W.3d at 697-98 . The majority says that because the water code

does not require the City to be joined, this factor weighs against

waiver of immunity. However, this begs

the question because in this case the City is the actual owner of the

easement. The easement was granted to

the City in 1997; thus, the City was a necessary and indispensable party at the

time the Wilsons filed suit. Tex. R. Civ. P. 39(a). Therefore, I believe this factor weighs in

the Wilsons = favor.

Likewise, I disagree with the majority = s

analysis of the fourth Taylor factor:

whether the water code provides an objective limitation on the

governmental unit = s potential liability. Taylor , 106 S.W.3d at 698 . The majority concludes that this factor

weighs against the Wilsons because the water code itself contains no limitation

on potential liability for the City. See

Tex. Water Code Ann . ' '

1.001-222.031 (Vernon 2000, 2002, 2004 & Supp. 2006). I agree that the

water code itself contains no limitation on damages. However, because the City relies on the Tort

Claims Act in asserting that the Wilsons = cause

of action involves a A governmental function, @

specifically A sanitary and storm sewers @ under

section 101.0215(a)(9) of the Tort Claims Act, and because the cause of action

is one sounding in tort, we should use and apply the caps of the Act itself to

limit the damages. Tex. Civ. Prac. & Rem. Code Ann. ' '

101.0215(a)(9), 101.023(c) (capping monetary damages against

municipality). Therefore, I would

conclude that this factor weighs in favor of the Wilsons.

I believe the majority is correct in looking at

the late-pursued immunity and jurisdictional issue, however, I also believe we

should allow the Wilsons an opportunity to replead their water code cause of

action. While this quite necessarily may

require a retrial of this cause of action, I believe the interests of justice

demand it and that the City should be estopped from contesting the Wilsons = right

to pursue it. For all of these reasons,

I respectfully concur and dissent with the majority opinion.

TERRIE

LIVINGSTON

JUSTICE

DELIVERED: March 1, 2007

DAUPHINOT, J. joins in

this concurring and dissenting opinion.

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-00-183-CV

THE

CITY OF KELLER APPELLANT

V.

JOHN

W. WILSON, APPELLEES

GRACE S. WILSON,

JOHNNY L. WILSON, AND

NANCY A. WILSON

------------

FROM THE 96TH

DISTRICT COURT OF TARRANT COUNTY

------------

DISSENTING OPINION ON

REMAND AND

ON

REHEARING EN BANC

------------

I respectfully dissent. I would deny the City of Keller = s motion

for rehearing.

This case was filed in 1996, tried in 2000,

affirmed on appeal by this court in 2002, 1 and reversed by the supreme court in 2005. 2

Despite traveling through three Texas courts for over nine years, the

City of Keller never sought a ruling from any of these courts that it possessed

governmental immunity from the Wilsons =

water-code-violation claim. Only after

the supreme court issued its mandate and remanded the case to us did the City

of Keller decide to raise the issue of governmental immunity. 3 In

2006, we issued an opinion on remand that did not address the governmental

immunity claim raised by the City of Keller because the issue was raised on

remand to this court for the first time via supplemental briefing, which we

denied leave to file. 4 Because I believe that the City of Keller = s effort

to raise this issue on remand comes too late and because I believe that the

supreme court = s mandate precludes us from

addressing this issue, I dissent.

While typically a lack of subject matter

jurisdiction may be raised at any time, logic dictates that some outer limit

must exist to this proposition of law. 5

Clearly, the Legislature intended that the issues of governmental immunity and

subject matter jurisdiction be finally resolved prior to trial. That is why the Legislature statutorily

authorized interlocutory appeals of these issues. See Tex.

Civ. Prac. & Rem. Code Ann. '

51.014(a)(5), (8) (Vernon Supp. 2006).

The City of Keller pleaded governmental immunity in 1996, but then sat

on its rights, never seeking a ruling on the issue until now. The issue of the City of Keller = s

now-alleged governmental immunity from the Wilsons =

water-code-violation claim should have been resolved approximately seven years

ago in the trial court before this claim was submitted to the jury. Or, it should have been raised as an issue in

the appeal perfected in our court. 6 Or, it should have been raised as a

conditional issue in the City of Keller = s

petition for review in the supreme court. 7 Or, it should have been raised in a motion

for rehearing in the supreme court. 8 Or, it should have been raised in a motion to

recall the supreme court = s mandate. 9 It

was not. 10

Despite multiple opportunities to raise the issue

of governmental immunity at multiple junctures in this litigation, the City of

Keller waited until after the supreme court issued its mandate to seek a ruling

on its alleged governmental immunity from the Wilsons =

water-code-violation claim. The supreme

court = s

mandate remanding this case to our court orders us to consider on remand A the

other issues raised on appeal. @ 11 Because the City of Keller = s

purported governmental immunity from the Wilsons =

water-code-violation claim was not raised in the trial court, was not raised as

an issue in this court, was not raised as a conditional issue in the supreme

court, was not raised in a motion for rehearing in the supreme court, and was

not raised in a motion to recall the supreme court = s

mandate, at this point in time, it is not and can never be an A other

issue raised on appeal. @

It was not raised. We have no

power to exceed the scope of the supreme court = s

mandate. See, e.g. , Tex.

Workers = Comp. Ins. Fund v. Mandlbauer , 34

S.W.3d 909, 911-12 (Tex. 2000); Fletcher v. Blair , 874 S.W.2d 83 , 87 n.1

(Tex. App. C Austin 1994, writ denied); accord

Harris County Children = s

Protective Servs. v. Olvera, 77 S.W.3d 336, 340 (Tex. App. C Houston

[14th Dist.] 2002, pet. denied) (holding

trial court cannot exceed scope of appellate court mandate by addressing issues

not set forth in mandate) ; Kahn v. Seely , 37 S.W.3d 86, 88 (Tex. App. C San

Antonio 2000, no pet.) (same); Owens v. Lubbock ISD , 237 S.W.2d 711, 712

(Tex. Civ. App. C Amarillo 1950, writ ref = d

n.r.e.) (same). Because the supreme

court = s

mandate instructs us to address only the A other

issues raised on appeal @ and because the issue of the

City of Keller = s alleged governmental immunity

from suit for the Wilsons = water-code-violation claim is

not one of the A other issues raised on appeal, @ it

falls outside the scope of the supreme court = s

mandate to this court. For these

reasons, I would deny the City of Keller = s motion

for rehearing.

SUE

WALKER

JUSTICE

MCCOY, J. joins in this

dissenting opinion.

DELIVERED: March 1, 2007

[1] City of Keller v. Wilson, 168 S.W.3d 802, 830

(Tex. 2005).

[2] See Tex. Water Code Ann. ' 11.086(a) (Vernon 2000) ( A No person may divert or

impound the natural flow of surface waters in this state . . . in a manner that

damages the property of another by the overflow of the water diverted or

impounded. @ ). The jury found for the Wilsons on their

causes of action for both inverse condemnation and water code violations, and

the Wilsons elected to recover on their inverse condemnation claim. On original submission, we did not address

the City = s issue challenging the

water code violation finding because, with one justice dissenting, we upheld

the jury = s inverse condemnation

finding. See City of Keller v. Wilson ,

86 S.W.3d 693, 709 (Tex. App. C Fort Worth 2002), rev = d , 168 S.W.3d 802 (Tex.

2005).

[3] City of Keller v. Wilson, No. 02-00-00183-CV, 2006

WL 1716130 , at *7 (Tex. App. C Fort Worth June 22, 2006, no pet. h.) (op. on reh = g); see Tex. Water Code Ann. ' 11.086(a) B (b).

[4] The City also raised this

issue in a supplemental appellant = s brief tendered before submission of this case

on remand.

[5] Tex.

Water Code Ann.

' 11.086(a) B (b).

[6] Tex. Dep = t of Parks & Wildlife v.

Miranda, 133

S.W.3d 217, 224 (Tex. 2004).

[7] Tooke v. City of Mexia, 197 S.W.3d 325, 343

(Tex. 2006). The City = s design of the drainage

facility that affected the Wilson property was a governmental function. See Tex.

Civ. Prac. & Rem. Code Ann. ' 101.0215(a)(9) (Vernon 2005) (including A sanitary and storm sewers @ among a municipality = s governmental functions

for purposes of tort liability); PKG Contracting, Inc. v. City of Mesquite,

197 S.W.3d 388, 388-89 (Tex. 2006) (holding that the City was acting in its governmental

capacity when it contracted to construct a storm drainage system); City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997) (holding that a city = s design and planning of its culvert system are

quasi‑judicial functions subject to governmental immunity).

[8] Tex. Nat. Resource Comm = n v. IT‑Davy, 74 S.W.3d 849, 855 (Tex. 2002) .

[9] Waco ISD v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) .

[10] Id.; Tex. Ass = n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).

[11] IT‑Davy, 74 S.W.3d at 855 .

[12] See Tex. Dep = t of Transp. v. Garza, 70 S.W.3d 802, 803, 808

(Tex. 2002) (dismissing case because trial court lacked subject matter

jurisdiction).

[13] Wichita Falls State Hosp. v.

Taylor, 106 S.W.3d

692, 696 (Tex. 2003) ; City of

LaPorte v. Barfield,

898 S.W.2d 288, 291 (Tex. 1995) .

[14] Tex.

Gov = t Code Ann. ' 311.034 (Vernon Supp.

2006).

[15] See, e.g., Tex. Civ. Prac. & Rem. Code Ann. ' 101.025(a) (Vernon 2005)

( A Sovereign immunity to

suit is waived and abolished to the extent of liability created by this

chapter. @ ); id. ' 63.007(b) (Vernon Supp.

2006) ( A The state = s sovereign immunity to

suit is waived only to the extent necessary to authorize a garnishment action

in accordance with this section. @ ); id. ' 81.010(d) (Vernon 2005) ( A Governmental immunity to

suit is waived and abolished only to the extent of the liability created by

Subsection (b). @ ); Tex.

Gov = t Code Ann. ' 2007.004 (Vernon 2000) ( A Sovereign immunity to

suit and liability is waived and abolished to the extent of liability created

by this chapter. @ ); Tex. Prop. Code Ann. ' 74.506(c) (Vernon Supp. 2006) ( A The state = s immunity from suit

without consent is abolished with respect to suits brought under this section. @ ).

[16] Wichita Falls State Hosp., 106 S.W.3d at 697 .

[17] Id.

For example, the supreme court has found waiver when the provision in

question would be meaningless unless immunity was waived. See Kerrville State Hosp. v. Fernandez,

28 S.W.3d 1, 8 (Tex. 2000) .

[18] Wichita Falls State Hosp., 106 S.W.3d at 697 ; see Magnolia Petro.

Co. v. Walker, 125 Tex. 430 , 83 S.W.2d 929, 934 (Tex.) (stating that

ambiguities in the terms of a legislative grant of a right or privilege by the

State must be construed in favor of the State), cert. denied, 296 U.S.

623 (1935).

[19] Wichita Falls State Hosp., 106 S.W.3d at 697 -98.

[20] Id. at 698; see IT‑Davy,

74 S.W.3d at 854 (noting that A [s]ubjecting the government to liability may hamper

governmental functions by shifting tax resources away from their intended

purposes toward defending lawsuits and paying judgments @ ).

[21] See, e.g., Kerrville

State Hosp.,

28 S.W.3d at 9-10 (limiting damages to those authorized by the Texas Tort

Claims Act); Barfield, 898 S.W.2d at 299 (same); Tex. Educ. Agency v.

Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (finding a waiver for attorney = s fees only).

[22] See Tex. Water Code Ann. ' 1.002(a) (Vernon 2000) (providing that A [t]he Code Construction

Act (Chapter 311, Government Code) applies to each provision of this code @ ).

[23] Tex.

Gov = t Code Ann. ' 311.005(2) (Vernon

2005).

[24] Wichita Falls State

Hosp.,

106 S.W.3d at 699-700 ; see also Duhart v. State, 610 S.W.2d 740, 742-43

(Tex. 1980) (holding that the Legislature = s incorporation of a Workers = Compensation Act

provision preserving a private employee = s cause of action for exemplary damages into a

statute providing compensation benefits for state highway department employees

did not clearly and unambiguously waive the State = s immunity from suit for

such damages).

[25] See Wichita Falls State

Hosp., 106 S.W.3d at 698-700 (concluding that the Legislature did not waive

sovereign immunity from suits based on alleged violations of the A patient = s bill of rights @ found in chapter 321 of

the health and safety code); accord Tex. Dep = t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 870-71

(Tex. App. C Fort Worth 2001, pet.

denied) (holding same).

[26] See Tex. Health & Safety Code Ann. ' 321.003 (Vernon 2001); id.

' 321.001(4) ( A > Mental health facility = has the meaning assigned

by Section 571.003. @ ); id. ' 571.003(12) (Vernon

Supp. 2006) ( A > Mental health facility = @ means: (A) an inpatient

or outpatient mental health facility operated by the [Texas Department of

Mental Health and Mental Retardation], a federal agency, a political subdivision,

or any person[.] @ ).

[27] Section 321.001 is the A Definitions @ section of chapter 321

of the health and safety code.

[28] Wichita Falls State

Hosp.,

106 S.W.3d at 701 (citations omitted).

In contrast, the supreme court has stated that the Wrongful Death Act

waives sovereign immunity because it provides that A [a] person is liable for damages arising from

an injury that causes an individual = s death, @ and the statute itself defines A person @ to include some

governmental entities rather than incorporating a definition from another

statute. Tex. Civ. Prac. & Rem. Code Ann. ' ' 71.001(1) B (2), .002(b) (Vernon

Supp. 2006) (emphasis supplied); see Barfield, 898 S.W.2d at 296 .

[29] See Wichita Falls State

Hosp.,

106 S.W.3d at 701 .

[30] See id; see also Magnolia

Petro. Co.,

83 S.W.2d at 934 ( A Legislative grants of

property, rights, or privileges must be construed strictly in favor of the

state . . . and whatever is not unequivocally granted in clear and explicit

terms is withheld. Any ambiguity or

obscurity in the terms of the statute must operate in favor of the state. @ ). If anything, section 11.086 is even more

ambiguous than section 321.003 of the health and safety code. Section 321.003 provides that A [a] . . . mental health

facility

that violates [the patient = s bill of rights found in chapter 321] . . . is

liable to a person receiving care or treatment in or from the facility who

is harmed as a result of the violation. @ Tex. Health & Safety Code Ann. ' 321.003(a) (emphasis

supplied). In contrast, section 11.086

of the water code merely provides that A no person may divert . . . the natural flow of

surface waters . . . in a manner that damages the property of another @ ; it does not state that

such a person A is liable @ for the diversion. Tex.

Water Code Ann. ' 11.086(a). Both the health and safety code and the water

code provide that a person who is injured as a result of a violation of the

respective statutes may recover damages.

Tex. Health & Safety Code

Ann. ' 321.003(b); Tex. Water Code Ann. ' 11.086(b).

[31] Wichita Falls State

Hosp.,

106 S.W.3d at 701 . This conclusion is

further supported by the fact that, after the underlying lawsuit was filed, in

2001 the Legislature added section 311.034 to the Code Construction Act, which

provides in pertinent part that A the use of > person, = as defined by Section 311.005 [of the government

code] to include governmental entities, does not indicate legislative intent to

waive sovereign immunity unless the context of the statute indicates no other

reasonable construction. @ Tex.

Gov = t Code Ann. ' 311.034.

[32] Wichita Falls State Hosp. , 106 S.W.3d at 697-98 .

[33] See Tex. Water Code Ann. ' ' 11.081 B .097 (Vernon 2000 & Supp. 2006). Compare Leeper, 893 S.W.2d at 446

(holding that sovereign immunity was waived under section 37.006 of the

Declaratory Judgments Act because the Legislature required that municipalities

must be joined in suits construing their legislative pronouncements and

provided that they would be bound by any resulting judgments).

[34] Wichita Falls State

Hosp.,

106 S.W.3d at 697-98, 701 .

[35] Id. at 698.

[36] Id. at 701; see, e.g.,

Tex. Civ. Prac. & Rem. Code Ann.

' 101.023(c) (Vernon 2005)

( A Liability of a

municipality under this chapter is limited to money damages in a maximum amount

of . . . $100,000 for each single occurrence for injury to or destruction of

property. @ ); id. ' 81.010(b) (providing

that a patient may obtain only an order requiring the governmental unit to

discharge the mental health services provider who committed the conduct, court

costs, and attorney = s fees); Tex. Gov = t

Code Ann. ' 2007.023(b) (Vernon

2000) ( A [T]he governmental entity

is only liable for[] invalidation of the governmental action or the part of the

governmental action resulting in the taking. @ ); id. ' 554.003(c) (Vernon 2004) ( A [A] public employee may

not recover compensatory damages for future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary

losses in an amount that exceeds [the amounts set by statute]. @ ).

[37] See Wichita Falls State

Hosp., 106 S.W.3d at 702 .

[38] For the reasons discussed

in the preceding parts of this opinion, we decline to follow the Dallas Court

of Appeals = holding to the contrary

in Abbott v. City of Princeton, 721 S.W.2d 872, 876 (Tex. App. C Dallas 1986, writ ref = d n.r.e.), disapproved

on other grounds, Schneider Nat = l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281

(Tex. 2004). Abbott did not apply

the clear and unambiguous standard adopted by the supreme court and codified by

the Legislature in the Code Construction Act.

We also note that Abbott and Thomas v. Hale County, 531

S.W.2d 213, 215 (Tex. Civ. App. C Amarillo 1975, no writ), on which the Wilsons

rely, are inapposite because they focused on whether the governmental entities

at issue were A persons @ for purposes of section

11.086 and its predecessor, not specifically on whether the Legislature had

waived the entities = sovereign immunity from

suit.

[39] 197 S.W.3d 371, 376 (Tex.

2006) (op. on reh = g).

[40] Id. at 377.

[41] BHP Petro. Co. v. Millard , 800 S.W.2d 838, 841

(Tex. 1990). This definition of a claim

for affirmative relief has its origin in the law of non-suit, but it has been

adopted by courts applying Reata = s rule concerning waiver of immunity. See, e.g., Nat = l Enter., Inc. v. E.N.E.

Props. ,

167 S.W.3d 39, 43 (Tex. App. C Waco 2005, no pet.) ( A A claim for affirmative

relief is stated if the counterclaim alleges a cause of action independent of

the plaintiff = s claim. @ ); Ray Ferguson

Interests, Inc. v. Harris County Sports & Convention Corp. , 169 S.W.3d

18, 23 (Tex. App. C Houston [1st Dist.] 2004,

no pet.) ( A To qualify as a claim for

affirmative relief, a defensive pleading must allege that the defendant has a

cause of action, independent of the plaintiff = s claim, on which he

could recover benefits, compensation or relief, even though the plaintiff may

abandon his cause of action or fail to establish it. @ ).

[42] See Dequire v. City of

Dallas , 192 S.W.3d 663, 666-67 (Tex. App. C Dallas 2006, no pet.)

(holding that defendant = s prayer for attorney = s fees asserted in

response to a plaintiff = s declaratory judgment

claim is a claim for affirmative relief within the meaning of Reata ); Town

of Flower Mound v. Upper Trinity Reg = l Water Dist., 178 S.W.3d 841, 844 (Tex. App. C Fort Worth 2005, no pet.)

(holding that defensive claim for attorney = s fees under the Declaratory Judgments Act is a

separate cause of action that may be asserted independently, separate and apart

from the plaintiff = s request for declaratory

judgment); see generally Tex.

Civ. Prac. & Rem Code Ann . ' 37.009 (Vernon 1997) ( A In any proceeding under

this chapter, the court may award costs and reasonable and necessary attorney = s fees as are equitable

and just. @ ).

[43] Tex.

R. App. P.

43.2(e). There are no other claims

pending in this appeal, because the supreme court has rendered judgment against

the Wilsons on inverse condemnation, their only other claim against the

City. City of Keller, 168 S.W.3d

at 830 .

1 The City did plead immunity in its answer,

but no hearing was held or order entered on its jurisdictional claims.

1 City of Keller v. Wilson , 86 S.W.3d 693 (Tex.

App. C Fort Worth 2002), rev = d , 168 S.W.3d 802 (Tex.

2005).

2 City of Keller v. Wilson , 168 S.W.3d 802 (Tex.

2005).

3 The City of Keller was previously

represented by different counsel.

4 City of Keller v. Wilson , No. 02-00-00183-CV,

2006 WL 1716130 , at *7 (Tex. App. C Fort Worth June 22, 2006, no pet. h.) (op. on

remand).

5 The majority does not cite any case

holding that the issue of governmental immunity can be raised for the first

time after mandate has issued from a state = s high court.

6 See Tex. R. App. P. 38.1(e).

7 See Tex. R. App. P. 53.2(f), 53.4.

8 See Tex. R. App. P. 53.4.

9 See Tex. R. App. P. 18.7; O'Neil v. Mack Trucks, Inc. , 551

S.W.2d 32, 32 (Tex. 1977).

10 A post-submission brief filed by the City

of Keller in the supreme court mentioned governmental immunity in the context

of inverse condemnation, but it did not seek relief on the theory that any

court lacked jurisdiction on any claim based on governmental immunity and

sought only the relief prayed for in the City of Keller = s brief on the merits.

11 Likewise, the supreme court = s opinion simply

instructs us to address the A jury = s alternate verdict for the Wilsons on a claim

under the Texas Water Code. @ City

of Keller, 168 S.W.3d at 830 .

[COMMENT1]

MAJORITY BY CAYCE; CONCUR AND DISSENT BY

LIVINGSTON; DISSENT BY WALKER