1. The Essential Protections for Community Centers –
Sovereign Immunity,
Texas Tort Claims Act
& Pleas to the Jurisdiction
This bio was written when I first began working with TOASE back in I have been with the firm now for a little over five years. The firm primarily represents cities in Tarrant, Johnson, Parker, Wise and Denton Counties. However, one partner in the firm has built his practice in the representation of various other governmental entities, including Community Centers, that partner being Carvin Adkins. It was Carvan that was originally asked to present for you all on this topic, but due to a conflicting obligation I was asked to take his place. And I have to say I was a little uncertain of what I could offer to representatives of Community Centers, but once I heard the topic I felt sure that I could bring to you what will hopefully be some helpful information on this topic.
Associate Attorney:
Municipal Prosecution
Drafting Ordinances
Development Agreements
Eminent Domain
Litigation
Bradley A. Anderle ♦ TOASE ♦ ♦

4. Roadmap
1. Introduction
2. What is sovereign immunity/governmental immunity?
3. Pleas to the Jurisdiction
4. Tort Claims Act and its limitations
5. Case studies

5. Sovereign/ Governmental Immunity

6. Governmental Immunity
Under the common-law doctrine of Sovereign Immunity, the sovereign cannot be sued without its consent.
City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
Under the common-law doctrine of sovereign immunity, the sovereign cannot be sued without its consent. Tooke, 197 S.W.3d at 331. In this case, the sovereign is the State of Texas. First, the state retains immunity from suit unless it has been expressly waived by the Legislature. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997) (superseded by statute on other grounds). City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
In this Court's second Term, we acknowledged the common-law rule that “no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.”23 We gave no basis for this principle of sovereign immunity, perhaps because a rule then more than six centuries old which the United States Supreme Court would describe as “an established principle of jurisprudence in all civilized nations”24 required no justification, or perhaps because the reasons given for the rule had evolved over the centuries, from “the king can do no wrong”,25 to preserving the dignity of the state,26 to protecting state resources.27 *332 The rule remains firmly established, and as it has come to be applied to the various governmental entities in this State, an important purpose is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments. Tooke v. City of Mexia, 197 S.W.3d 325, 331–32 (Tex. 2006)
II. Although this rule was originally justified by the fiction that “the king can do no wrong,” id. (citing 3 William Blackstone, Commentaries on the Laws of England 254 (1768)), in modern times its “purpose is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments,” id. at Practically speaking, who has to pay for the judgments against that state? The taxpayers, who had nothing to do with the incident that lead to the damages. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
What about Governmental Immunity? Where does that come from? What does that mean? What is the difference?
What about Governmental Immunity?

7. Governmental Immunity
Governmental Immunity protects political subdivisions of the State from lawsuits, and it is derived from the State’s sovereign immunity.
City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
Are Community Centers a political subdivision entitled to governmental immunity?
I. When performing governmental functions, political subdivisions derive governmental immunity from the state's sovereign immunity.5 See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex.2007). City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
What is a political subdivision of the state?
Political subdivisions of the state include counties, cities, and school districts. Wichita Falls State Hosp., 106 S.W.3d at 694 n.3. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., CV, 2017 WL , at *9 (Tex. App.—Houston [14th Dist.] July 6, 2017, pet. filed)
Our analysis is guided by court decisions analyzing whether certain entities are entitled to governmental immunity even though they are not agencies or political subdivisions of the state. In Ben Bolt, the court considered whether a self-insurance fund whose membership comprised of local political subdivisions enjoys governmental immunity. Ben Bolt, 212 S.W.3d at 322. After reviewing the purposes of immunity, the nature of the fund, and noting that self-insurance is a function of local governments, the court concluded that the fund's “nature, purposes[,] and powers” demonstrate legislative intent that it “exist as a distinct governmental entity entitled to assert immunity in its own right for the performance of a governmental function.” Id. at Similarly, our sister court of appeals, in discussing a waiver of immunity, determined that a county sports authority was protected from suit by governmental immunity. See Nat'l Pub. Fin. Guarantee Corp. v. Harris Cty.-Houston Sports Auth., 448 S.W.3d 472, 475 (Tex. App.—Houston [1st Dist.] 2014, no pet.). There, the court noted that the sports authority was created by a municipality and the legislature expressly provided that the authority, as a venue district authorized by statute, was a political subdivision of the state. See id. (citing Tex. Loc. Gov't Code § ) (a venue district is a political subdivision of the creating political subdivision and of the state). Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., CV, 2017 WL , at *9 (Tex. App.—Houston [14th Dist.] July 6, 2017, pet. filed)
III. Are community centers a political subdivision entitled to governmental immunity?
Let’s talk about the three factors:
“nature, purposes[,] and powers” demonstrate legislative intent that it “exist as a distinct governmental entity entitled to assert immunity in its own right for the performance of a governmental function.”
Thankfully, when it comes to community centers, the Legislature

8. Governmental Immunity
YES!!!
Community Centers are entitled to governmental immunity.
A Community Center is an agency of the state, a governmental unit and a unit of local government as defined and specified by Chapters 101 and 102, Civil Practice and Remedies Code (tort claims protection).
Texas Health and Safety Code Section (c)
Sometimes the Legislature makes it easy on us and on the Courts in making the determination that an entity is a governmental entity by saying in the statute that the entity is a governmental entity. That is exactly what they have done for Community Centers.

9. Governmental Immunity
The Texas Supreme Court has affirmatively held that a Community Center is entitled to governmental immunity.
Dallas Cty Medical Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)
As have many other courts in the state.
In addition to the legislative declaration in , the Texas Supreme Court has established the same.
You can be sure, there is no doubt, in particular for purposes of the Tort Claims Act anyway, that a community center is a governmental entity that is entitled to governmental immunity. Now, sometimes when the question of whether an entity is a governmental entity or not comes up, the word quasi-governmental will be thrown around. I don’t want you to take this the wrong way, but there is nothing “quasi” about a community center. Under the statute, your organizations are community centers that are declared to be a governmental entity.

10. Governmental Immunity
Each function performed by a community center under this title is a governmental function if the function is required or affirmatively approved by any statute of this state or of the United States or by a regulatory agency of this state or of the United States duly acting under any constitutional or statutory authority vesting the agency with such power. Notwithstanding any other law, a community center is subject to Chapter 554, Government Code. (“Whistleblower” Act)
Texas Health and Safety Code Section (f)

11. Governmental Immunity
Then why do Community Centers get sued all the time?
Waivers of Immunity

12. Governmental Immunity
It is the Legislature’s sole province to waive or abrogate sovereign immunity.
Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997)
First, the state retains immunity from suit unless it has been expressly waived by the Legislature. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997) (superseded by statute on other grounds). Like sovereign immunity, governmental immunity can be waived, but we defer to the Legislature to do so by statute. City of Galveston, 217 S.W.3d at 469. The Legislature has mandated that a statute shall not be construed as waiving immunity absent “clear and unambiguous language.” Tex. Gov't Code § ; Tooke, 197 S.W.3d at 328–29. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
“We have consistently deferred to the Legislature to waive sovereign immunity from suit, because this allows the Legislature to protect its policymaking function.”31 More specifically, we defer to the Legislature to waive immunity from contract claims because:
• “the handling of contract claims against the government involves policy choices more complex than simply waiver of immunity,” including whether to rely on administrative processes and what remedies to allow;
• the government should not be kept from responding to changing conditions for the public welfare by prior policy decisions reflected in long-term or ill-considered obligations;
• the claims process is tied to the appropriations process, and the priorities that guide the latter should also inform the former; and
• the Legislature is able to deal not only with these policy concerns but also with individual situations in deciding whether to waive immunity by resolution, cases by case, or by statute.32
In sum, “[i]n the contract-claims context, legislative control over sovereign immunity allows the Legislature to respond to changing conditions and revise existing agreements if doing so would benefit the public.”33 To ensure that this legislative *333 control is not lightly disturbed, a waiver of immunity must be clear and unambiguous.34
Tooke v. City of Mexia, 197 S.W.3d 325, 332–33 (Tex. 2006)
Litigants have repeatedly asked this Court to abrogate one or more aspects of the State's sovereign immunity. However, this Court has uniformly held that it is the Legislature's sole province to waive or abrogate sovereign immunity. See Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex.), cert. denied, 510 U.S. 820, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993); Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); See also Greenhill, Should Governmental Immunity for Torts be Re–Examined, and, If So, by Whom? 31 Tex. B.J. 1036, 1070 (1968). Today, we again hold that it is the Legislature's province to modify sovereign immunity if it is inclined to do so and therefore refuse Federal Sign's invitation to undertake that task. Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997)

13. Governmental Immunity
Immunity from Suit vs
Immunity from Liability
This Court has long recognized that sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State. Director of the Dep't of Agric. & Env't, 600 S.W.2d at 265; Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 152–53 (1960); Hosner v. DeYoung, 1 Tex. 764, 769 (1847). Sovereign immunity embraces two principles: immunity from suit and immunity from liability. Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970). First, the State retains immunity from suit, without legislative consent, even if the State's liability is not disputed. Missouri Pac. R.R., 453 S.W.2d at 813. Second, the State retains immunity from liability though the Legislature has granted consent to the suit. Missouri Pac. R.R., 453 S.W.2d at 813.
78 Immunity from suit bars a suit against the State unless the State expressly gives its consent to the suit. Missouri Pac. R.R., 453 S.W.2d at 813; see also Tex. Civ. Prac. & Rem.Code § ; Tex. Civ. Prac. & Rem.Code §§ –.005. In other words, although the claim asserted may be one on which the State acknowledges liability, this rule precludes a remedy until the Legislature consents to suit. Missouri Pac. R.R., 453 S.W.2d at 813. The State may consent to suit by statute or by legislative resolution. Missouri Pac. R.R., 453 S.W.2d at 814. Legislative consent for suit or any other sovereign immunity waiver must be “by clear and unambiguous language.” University of Texas Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980).
9 Immunity from liability protects the State from judgments even if the Legislature has expressly given consent to the suit. Missouri Pac. R.R., 453 S.W.2d at 813. In other words, even if the Legislature authorizes suit against the State, the question remains whether the claim is one for which the State acknowledges liability. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 425 (1936); see also Governmental Immunity From Suit and Liability in Texas, 27 Tex. L. Rev. 337, 342 (1949). The State neither creates nor admits liability by granting permission to be sued. Tex. Civ. Prac. & Rem.Code § (“A resolution granting permission to sue does not waive to any extent immunity from liability.”); Isbell, 94 S.W.2d at 424–25. However, when the State contracts, the State is liable on contracts made for its benefit as if it were a private person. State v. Elliott, 212 S.W. 695, 697–98 (Tex.Civ.App.—Galveston 1919, writ ref'd). Consequently, when *406 the State contracts with private citizens it waives immunity from liability.
Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 405–06 (Tex. 1997)

14. Pleas to the Jurisdiction

15. Pleas to the Jurisdiction
A Plea to the Jurisdiction is the vehicle to challenge the subject-matter jurisdiction of the Court to hear the case.
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

16. Pleas to the Jurisdiction
The Plaintiff bears the burden to allege facts that affirmatively demonstrate the trial court’s jurisdiction.
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

17. Pleas to the Jurisdiction
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to determine if a fact issue exists.
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

18. Pleas to the Jurisdiction
A governmental entity is entitled to an interlocutory appeal when a plea to the jurisdiction is overruled.
TCPRC §

19. (Texas Civil Practice and Remedies Code §§ 101.001-.109)
Tort Claims Act
(Texas Civil Practice and Remedies Code §§ )

20. A LIMITED waiver of governmental immunity.
Texas Tort Claims Act
A LIMITED waiver of governmental immunity.
A limitation on a Community Center’s governmental immunity.

21. Texas Tort Claims Act Waives Governmental Immunity for:
Operation or Use of Motor Driven Vehicle or Equipment
Condition or Use of Personal Property
Condition or Use of Real Property (Premise Defects)

22. Texas Tort Claims Act A Community Center is liable for:
The wrongful act or omission or the negligence of an employee acting within the scope of employment if the injury arises from the operation or use of a motor-driven vehicle or equipment.
Tex. Civ. Prac. & Rem. Code § (1)
The Texas Tort Claims Act works as a waiver sovereign immunity for three things. Number 1: immunity is waived for “the wrongful act or omission or the negligence of an employee acting within the scope of employment if the injury arises from the operation or use of a motor-driven vehicle or equipment.” Tex. Civ. Prac. & Rem. Code (1). [NEXT]

23. Texas Tort Claims Act
A Community Center is liable for:
Personal injury and death caused by a condition or use of tangible personal property.
Tex. Civ. Prac. & Rem. Code § (2)
The second thing it waives immunity for is “personal injury and death caused by a condition or use of tangible personal property.” Tex. Civ. Prac. & Rem. Code (2). This would be your cases where injury is caused by personal property, rather than real property. [NEXT]

24. Texas Tort Claims Act
A Community Center is liable for:
Personal injury and death caused by a condition or use of real property.
Tex. Civ. Prac. & Rem. Code § (2)
Third, immunity was waived for “personal injury and death caused by a condition or use of real property.” Tex. Civ. Prac. & Rem. Code (2). This waiver is for injury from what is known as “premises defects.” Premises defects are what we are focusing on today. Let’s cover some real quick background on premises defects, to refresh most of you and bring some of you up to speed. [NEXT]
Premise Defects!!

25. Waives Immunity from Suit and Immunity from Liability
Texas Tort Claims Act
Waives Immunity from Suit
(Tex. CPRC § (a))
and Immunity from Liability
(Tex. CPRC § )

26. Texas Tort Claims Act
Limitations in the Act

27. Texas Tort Claims Act
A governmental unit is entitled to receive notice of a claim against it not later than six months after the day of the incident giving rise to the claim.
TCPRC §
Sec NOTICE. (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
(b) A city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

28. The Act does not waive immunity for intentional torts.
Texas Tort Claims Act
The Act does not waive immunity for intentional torts.
TCPRC § (2)
Assault, Battery, False Imprisonment, or any other intentional tort.

29. Texas Tort Claims Act
This Act does not apply to a claim that arises due to a discretionary act or failure to act by a governmental entity.
TCPRC §
Fortunately, there is some really good news for Cities that are met with this exact situation involving street lights. The Tort Claims Act does not waive immunity for any claim based on the nonperformance or failure to perform an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. This is under section of the Civ. Prac. & Rem. Code. This applies to the entire Chapter, so this is not limited to just Premises Defects. But I believe this has application in Euless’s case and in a case where the City did not install street lights by design.

30. Texas Tort Claims Act Liability of a Community Center is limited to:
$100,00 for each person for injury or death
$300,000 for each single occurrence of injury or death
$100,000 for each single occurrence for injury to or destruction of property

31. Exemplary damages are not authorized under the Act.
Texas Tort Claims Act
Exemplary damages are not authorized under the Act.
Tex. CPRC § (b)

32. Texas Tort Claims Act
Neither the existence nor the amount of insurance held by a governmental unit is subject to discovery or admissible at trial for a claim under the Act.
Tex. CPRC §

33. Texas Tort Claims Act
A plaintiff cannot sue both the governmental entity and the employee of the governmental entity under the Act.
TCPRC §
Sec ELECTION OF REMEDIES. (a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, Amended by Acts 2003, 78th Leg., ch. 204, Sec , eff. Sept. 1, 2003.

34. Recent Case Dallas County MHMR v. Bossley
968 S.W.2d 339 (Tex. 1998)
Kelly v. Permian Basin Cmty. Centers for MHMR, Turning Point
CV, 2017 WL , at *1 (Tex. App.—Eastland Aug. 31, 2017, no pet. h.)

35. Thank you!