Patricia Ann Powers v. the City of Conroe and Conroe Animal Control

In The Court of Appeals Ninth District of Texas at Beaumont ______________________ NO. 09-07-591 CV ______________________ PATRICIA ANN POWERS, Appellant V. THE CITY OF CONROE AND CONROE ANIMAL CONTROL, Appellees On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 07-06-06222 CV MEMORANDUM OPINION Patricia Ann Powers, acting pro se, sued the City of Conroe and a city department, Conroe Animal Control, along with city employee, Lieutenant Wayne McCarty, and the municipal court judge of Conroe, Judge Cates. Pursuant to section 101.106(c) of the Tort Claims Act, the trial court dismissed McCarty and Cates, the individual defendants, from the suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(c) (Vernon 2005). The trial court then granted the City of Conroe's plea to the jurisdiction. Powers appeals pro se. An appellate court's review of a trial court's ruling on a plea to the jurisdiction is de novo. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006). "[W]e consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). In her petition, Powers pled that her neighbors have a "white bichon [frise] intact male [dog] that runs at large 24/7." She stated the dog would come into her yard and charge at her three pound chihuahua even though she had told her neighbors to keep their dog out of her yard. On one occasion when the neighbor's dog tried to attack her dog, Powers fell face-down on concrete on her property as she attempted to separate the dogs; she indicated she injured herself. Powers called the Conroe Police Department. After Powers gave a report to the officer who came to her door, he went to the neighbor's house and talked with the neighbor. Later, the dog again came on her property; she fell a second time while protecting her dog. Powers called Animal Control, and someone came out and talked to the neighbors. On another occasion, the dog attacked her cats on her porch. Powers wrote a letter to her neighbors about the dog; she telephoned Lieutenant McCarty who, she alleges, is supervisor of Conroe's Animal Control Department; she states he did not return some of her calls. Powers stated in her petition that she placed "no trespassing signs" on her property and also talked with the city attorney and Judge Cates. She asserted the dog trespassed on her property approximately fourteen times. Powers alleges she was notified on or about May 10, 2007, that Conroe Animal Control "was not going to do anything." Appellant's basic complaint is that the defendants (1) were negligent and "derelict" in failing to enforce the law and failing to control and protect her from her neighbors' dog. She requests damages, court costs, and fees. Absent legislative consent, municipalities in Texas generally have immunity from suit when they are performing governmental functions. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); see Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon 2005). Section 101.0215 of the Texas Civil Practice and Remedies Code lists "animal control" and police protection and control as governmental functions. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(1), (33) (Vernon 2005). Governmental immunity from suit may be asserted in a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Generally, when suing a governmental entity, a party must establish legislative consent to sue by either reference to a statute or to express legislative permission. Id. Powers includes in her petition and appellate brief several city ordinances and safety regulations regarding animal control. The ordinances do not contain any provision waiving immunity from suit. Appellant's petition makes no reference to any basis for waiver of immunity; her appellate brief references the Tort Claims Act once. We interpret her petition below and her argument on appeal to be an assertion of waiver of governmental immunity under that Act. A municipality has immunity for activities that the legislature has defined as governmental, except to the extent immunity is waived by acts, omissions, and conditions as set out in the Tort Claims Act. See City of Weslaco v. Borne, 210 S.W.3d 782, 790 (Tex. App.--Corpus Christi 2006, pet. denied); City of El Paso v. Gomez-Parra, 198 S.W.3d 364, 367-68 (Tex. App.--El Paso 2006, no pet.). The Tort Claims Act waives immunity from suit on all claims for which it waives immunity from liability. See Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (Vernon 2005). In three general areas, the Act waives immunity from liability: "use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property." Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976)); Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005). The pleadings in this case do not implicate any of the three general areas. Powers alleged in her petition that the City and its employees committed the tort of negligence in the exercise of its animal control function by failing to control the dog that repeatedly trespassed on her property and caused her injury. Powers does not plead that she was injured as the result of the City's use of tangible personal property. Section 101.055 of the Civil Practice and Remedies Code provides that Chapter 101 does not apply to a claim arising from the failure to provide, or the method of providing, police protection. See Tex. Civ. Prac. & Rem. Code Ann. § 101.055 (Vernon 2005). Animal control and police protection are governmental functions. Powers has not shown immunity from suit has been waived for those governmental functions. The trial court correctly granted the City's plea to the jurisdiction. The judgment is affirmed. AFFIRMED. ________________________________ DAVID GAULTNEY Justice Submitted on March 4, 2008 Opinion Delivered July 31, 2008 Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. Upon motion by the City, the trial court properly dismissed the individual defendants. Under section 101.106 of the Texas Civil Practice and Remedies Code, "[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." Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2005). In the motion to dismiss the individual defendants, the City pled that both McCarty and Cates were in the City's employ. Powers has not disputed that assertion and has not alleged that the individual defendants were acting outside the scope of their employment by the City of Conroe.