United States District Court, S.D. Texas, Houston Division
RESIDENTS AGAINST FLOODING, ANITA GIEZENTANNER, VIRGINIA GREGORY, LEE MARTIN, LOIS MEYERS, AND BAYAN RAJI, Plaintiffs,
REINVESTMENT ZONE NUMBER SEVENTEEN, CITY OF HOUSTON, TEXAS TIRZ 17, MEMORIAL CITY REDEVELOPMENT AUTHORITY AKA TIRZ 17 REDEVELOPMENT AUTHORITY AND THE CITY OF HOUSTON, TEXAS, Defendants.
OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE
above referenced action seeks declaratory and injunctive
relief to enjoin the use of arbitrary government action that
benefits private commercial interests and developers within
Reinvestment Zone Number Seventeen City of Houston, Texas
(“TIRZ 17”) at the expense of
substantial harm to hundreds of residential homes in nearby
Memorial City neighborhoods, allegedly by Defendants'
knowingly conveying stormwater out of the TIRZ 17 commercial
areas into its residential areas, which lack adequate
infrastructure to deal with the flooding. The flooding in
effect allegedly seizes Plaintiffs' real property.
Plaintiffs seek immediate prioritization of flood relief
projects for their neighborhoods.
before the Court are the following motions:
(1) Defendant the City of Houston's Rule 12(b)(1) (the
“City's”) motion to dismiss for lack of
standing, Rule 12(b)(6) motion to dismiss for failure to
state a claim, and, in the alternative, Rule 12(e) motion for
more definite statement (instrument #5) regarding all claims
brought by Plaintiffs the Residents Against Flooding
(“RAF”), Anita Giezentanner, Virginia Gregory,
Lois Meyers,  and Bayan Raji;
(2) Defendants Reinvestment Zone Number Seventeen, City of
Houston, Texas (the “Zone”) and Memorial City
Redevelopment Authority's (the
“Authority's”) motion to dismiss, or,
alternatively, for a more definite statement (#7);
(3) City's Motion to Dismiss (#17) First Amended
(4) Plaintiffs' motion for leave of Court to file their
consolidated Sur-Reply (Sur-Reply, #19 at p.4, electronic
Because Plaintiffs filed their amended complaint (#14) to
expand their factual allegations in response to the Rule
12(e) motions for more definite statement and to address
issues as they arose, (2) because the City in its reply (#17)
asked the Court to apply its motion to dismiss and subsequent
briefing to Plaintiffs' amended complaint (#14), which
the City argues eliminated those of Plaintiffs' claims
mooted by the passage of time, (3) because Plaintiffs have
not filed any objections to the City's motion for leave
to file consolidated Sur-Reply, and (4) because much has
changed since the case was commenced, the Court grants
Plaintiffs' motion for leave of Court to file their
consolidated Sur-Reply. #19 at p. 4 of electronic numbering.
The Court will therefore review the pending motions to
dismiss and other submissions with respect to this amended
complaint (#14). Moreover, because the briefing has been so
extensive and has evolved as issues were raised and argued by
the parties, the Court finds that further amendments are not
because the Zone and the Authority filed consolidated
responses to both motions to dismiss, which overlap on any
number of issues, the Court summarizes each of the motions to
dismiss first, and then addresses the responses, replies, and
Plaintiffs complain that the City and the Authority have
engaged in a pattern of: (1) implementing drainage and
mobility infrastructure projects in and around TIRZ 17 that
efficiently convey stormwater out of the TIRZ 17 commercial
areas into the surrounding residential neighborhoods or into
their overstrained storm systems; (2) approving private
commercial development within TIRZ 17 that elevated the
commercial properties, without any, or without sufficient,
stormwater mitigation, causing more stormwater to enter the
residential neighborhoods; and (3) postponing infrastructure
projects to help the residential neighborhoods, often in
favor of non-essential projects that benefit private
commercial interests, ” causing repeated and terrible
flooding in hundreds of homes in the Memorial City area in
violation of the United States and Texas Constitutions. #14,
First Amended Complaint, ¶ 3.
contend that Defendants had actual notice of the drastic need
to improve the drainage conditions of TIRZ 17 from the
repeated destructive floods (especially three
“historic” floods in 2009, 2014, and 2015), from
numerous complaints from Memorial area residents to the City,
to its Planning Commission, to its Flood and Drainage
Committee, and to City Council, and from multiple studies
conducted by the City, the Authority, and engineering firms
(including the Walter P. Moore engineering firm in 2003,
Klotz Associates in 2004 and 2014, LAN Engineering in 2006,
2012, and 2014 Omega Engineering in 2008, and, in 2009, the
Harris County Flood Control District (“HCFCD”),
which regulates and maintains bayous and creeks). In
addition, Plaintiffs claim that Defendants have a
sophisticated hydrological model that can predict the depth
of flooding in any area when new drainage infrastructure is
the Houston City Council appoints all Board members of the
TIRZ, all of whom have significant property or business
interests inside TIRZ 17, as well as those of the Authority;
the same members are appointed to serve on both the
TIRZ's and the Authority's boards contemporaneously.
Upon information and belief, the two boards hold simultaneous
joint Board Meetings, deliberate and take votes as a single
unified entity without distinguishing which one is taking an
action, and keep minutes and records as if they were a single
committee. The City retains oversight over TIRZ 17 and has
statutory power over the Authority to submit projects and
budgets, and the City has final approval over all proposals.
Approval of the TIRZ projects is memorialized in City
ordinances. Such ordinances also approve its Capital
Improvement Plans (“CIPs”), which are issued
every five years. See #14, Exhibits B, C, D. Now
that TIRZ 17 and the Authority exist, the City no longer
performs its own drainage projects in or near the TIRZ.
bring four causes of action: (1) violation of substantive due
process under the Fourteenth Amendment and 42 U.S.C. §
1983; (2) violation of the Texas Constitution Art. 1 §
19 (also known as the due course of law
provision); (3) violation of the Fourth Amendment and 42
U.S.C. § 1983 by unreasonable seizure of their property;
and (4) a declaratory judgment for state and federal
The declaratory and injunctive relief Plaintiffs seek is to
require immediate prioritization of flood relief projects for
neighborhoods; to enjoin the Defendants from using TIRZ 17
funds for private development agreements to enjoin the City
from approving new commercial building permits on large lots
within TIRZ 17 until a finding is made that the development
does not increase flooding risks in three residential
neighborhoods; and to appoint a Special Master that will
oversee expenditure of TIRZ 17 funds and oversee projects
designed to alleviate flooding in the nearby residential
areas. Id. at ¶ 24.
note that the City participates in the Federal Flood
Insurance program and is therefore subject to federal
statutory regulation under 42 U.S.C. § 4001, et
seq., and the federal regulations enacted under the
authority of these statutes. Under 44 C.F.R. Part 65,
participating communities are required to assist FEMA's
efforts in providing up-to-date information on special flood
and flood-related erosion hazards. On information and belief,
Plaintiffs assert that the City has not met these
12(b)(1) allows a party to move for dismissal of an action
for lack of subject matter jurisdiction. The party asserting
that subject matter exists, here Plaintiffs, must bear the
burden of proof by a preponderance of the evidence for a
12(b)(1) motion. New Orleans & Gulf Coast Ry. Co. v.
Barrois, 533 F.3d 321, 327 (5th Cir. 2008);
Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001).
reviewing a motion under 12(b)(1) the court may consider (1)
the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts. Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is characterized as either a
“facial” attack, i.e., the allegations in the
complaint are insufficient to invoke federal jurisdiction, or
as a “factual” attack, i.e., the facts in the
complaint supporting subject matter jurisdiction are
questioned. In re Blue Water Endeavors, LLC, Bankr.
No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex.
Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of
Arts, 992 F.Supp. 876, 878-79 (N.D. Tex. 1998),
aff'd, 199 F.3d 279 (5th Cir. 2000).
A facial attack happens when a defendant files a Rule
12(b)(1) motion without accompanying evidence. Paterson
v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981). In a facial attack, allegations in the complaint are
taken as true. Blue Water, 2011 WL 52525 at *3,
citing Saraw Partnership v. United States, 67 F.3d 567,
569 (5thCir. 1995).
is a factual attack, as is the case here, the Court may
consider any evidence (affidavits, testimony, documents,
etc.) submitted by the parties that is relevant to the issue
of jurisdiction. Id., citing Irwin v. Veterans
Admin., 874 F.2d 1092, 1096 (5th Cir. 1989).
A defendant making a factual attack on a complaint may
provide supporting affidavits, testimony or other admissible
evidence. Patterson v. Weinberger, 644 F.3d 521, 523
(5th Cir. 1981). The plaintiff, to satisfy its
burden of proof, may also submit evidence to show by a
preponderance of the evidence that subject matter
jurisdiction exists. Id. The court's
consideration of such matters outside the pleadings does not
convert the motion to one for summary judgment under Rule
56(c). Robinson v. Paulson, H-06-4083, 2008 WL
4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing
Garcia, 104 F.3d at 1261. “Unlike in a facial
attack where jurisdiction is determined upon the basis of
allegations of the complaint, accepted as true[, ] when a
factual attack is made upon federal jurisdiction, no
presumption of truthfulness attaches to the plaintiffs'
jurisdictional allegations, and the court is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case. In a factual attack, the plaintiffs
have the burden of proving that federal jurisdiction does in
fact exist.” Evans v. Tubbe, 657 F.2d 661, 663
(5th Cir. 1981). In resolving a factual attack on
subject matter jurisdiction under Rule 12(b)(1), the district
court, which does not address the merits of the suit,
has significant authority “‘to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case.'” Robinson v. Paulson, No.
H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008),
quoting Garcia v. Copenhaver, Bell & Assocs.,
104 F.3d 1256, 1261 (11th Cir. 1997), and
citing Clark v. Tarrant County, 798 F.2d 736, 741
(5th Cir. 1986).
may sua sponte raise a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction at any time.
Westland Oil Development Corp. v. Summit Transp.
Co., 481 F.Supp. 15 (S.D. Tex. 1979),
aff'd, 614 F.2d 768 (1980). See also Kidd v.
Southwest Airlines Co., 891 F.2d 540, 545
(5th Cir. 1990)(“[F]ederal courts must
address jurisdictional questions sua sponte when the
parties' briefs do not bring the issue to the court's
attention.”). The Court may find lack of subject matter
jurisdiction on any of the following three bases: (1) the
complaint; (2) the complaint along with undisputed facts
evidenced in the record; and (3) the complaint along with
undisputed facts and the court's resolution of disputed
facts. Barrera-Montenegro v. United States, 74 F.3d
657, 659 (5th Cir. 1996). The Court's
dismissal of a case for lack of subject matter jurisdiction
is not a judgment on the merits and does not preclude the
plaintiff from pursuing his claim in a court that properly
has jurisdiction. Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977).
district court reviews a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), it must construe the complaint in
favor of the plaintiff and take all well-pleaded facts as
true. Randall D. Wolcott, MD, PA v. Sebelius, 635
F.3d 757, 763 (5th Cir. 2011), citing Gonzalez
v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
The plaintiff's legal conclusions are not entitled to the
same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions.”), citing Bell
Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007);
Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx.
280, 283 (5th Cir. Jan. 7, 2012).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)(citations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Id. at 1965, citing 5 C.
Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . .
than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action”).
“Twombly jettisoned the minimum notice
pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief”], and
instead required that a complaint allege enough facts to
state a claim that is plausible on its face.” St.
Germain v. Howard, 556 F.3d 261, 263 n.2 (5th
Cir. 2009), quoting In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007).
“‘A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Montoya v. FedEx Ground
Package System, Inc., 614 F.3d 145, 148 (5th
Cir. 2010), quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The plausibility standard is not akin
to a “probability requirement, ” but asks for
more than a “possibility that a defendant has acted
unlawfully.” Twombly, 550 U.S. at 556.
Dismissal is appropriate when the plaintiff fails to allege
“‘enough facts to state a claim to relief that is
plausible on its face'” and therefore fails to
“‘raise a right to relief above the speculative
level.'” Montoya, 614 F.3d at 148,
quoting Twombly, 550 U.S. at 555, 570.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), the
Supreme Court stated that “only a complaint that states
a plausible claim for relief survives a motion to dismiss,
” a determination involving “a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.”
“[T]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice” under Rule 12(b). Iqbal, 556 U.S. at
678. The plaintiff must plead specific facts, not merely
conclusory allegations, to avoid dismissal. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir. 2000). “Dismissal is proper if the
complaint lacks an allegation regarding a required element
necessary to obtain relief . . . .“ Rios v. City of
Del Rio, Texas, 444 F.3d 417, 421 (5th Cir.
2006), cert. denied, 549 U.S. 825 (2006).
under Rule 12(b)(6) is proper not only where the plaintiff
fails to plead sufficient facts to support a cognizable legal
theory, but also where the plaintiff fails to allege a
cognizable legal theory. Kjellvander v. Citicorp,
156 F.R.D. 138, 140 (S.D. Tex. 1994), citing Garrett v.
Commonwealth Mortgage Corp., 938 F.2d 591, 594
(5th Cir. 1991). “A complaint lacks an
‘arguable basis in law' if it is based on an
indisputably meritless legal theory' or a violation of a
legal interest that does not exist.” Ross v. State
of Texas, Civ. A. No. H-10-2008, 2011 WL 5978029, at *8
(S.D. Tex. Nov. 29, 2011).
12(b) is not a procedure for resolving contests about the
facts or the merits of a case.” Gallentine v.
Housing Authority of City of Port Arthur, Tex., 919
F.Supp.2d 787, 794 (E.D. Tex. Jan. 22, 2012), citing
5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil 2d § 1356, at 294
noted, on a Rule 12(b)(6) review, although generally the
court may not look beyond the pleadings, the Court may
examine the complaint, documents attached to the complaint,
and documents attached to the motion to dismiss to which the
complaint refers and which are central to the plaintiff's
claim(s), as well as matters of public record. Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383,
387 (5th Cir. 2010), citing Collins, 224
F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338,
1341, 1343 n.6 (5th Cir. 1994). See also
United States ex rel. Willard v. Humana Health Plan of Tex.,
Inc., 336 F.3d 375, 379 (5th Cir.
2003)(“the court may consider . . . matters of which
judicial notice may be taken”). Taking judicial notice
of public records directly relevant to the issue in dispute
is proper on a Rule 12(b)(6) review and does not transform
the motion into one for summary judgment. Funk v. Stryker
Corp., 631 F.3d 777, 780 (5th Cir. 2011).
“A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b).
that a defendant attaches to its motion to dismiss are
considered part of the pleadings if they are referred to in
the plaintiff's complaint and are central to [its]
claim.'” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5thCir. 2000),
quoting Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993). By
such attachments the defendant simply provides additional
notice of the basis of the suit to the plaintiff and aids the
Court in determining whether a claim has been stated.
Id. at 499. The attachments may also provide the
context from which any quotation or reference in the motion
is drawn to aid the court in correctly construing that
quotation or reference. In re Enron Corp. Securities,
Derivative & “ERISA” Litig., No.
H-04-0087, 2005 WL 3504860, at 11 n.20 (S.D. Tex. Dec. 22,
2005). “Where the allegations in the complaint are
contradicted by facts established by documents attached as
exhibits to the complaint, the court may properly disregard
the allegations.” Martinez v. Reno, No.
3:97-CV-0813-P, 1997 WL 786250, at *2 (N.D. Tex. Dec. 15,
1997), citing Nishimatsu Const. Co. v. Houston Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
When conclusory allegations and unwarranted deductions of
fact are contradicted by facts disclosed in the appended
exhibit, which is treated as part of the complaint, the
allegations are not admitted as true. Carter v. Target
Corp., 541 Fed.Appx. 413, 417 (5th Cir. Oct.
4, 2013), citing Associated Builders, Inc. v. Alabama
Power Co., 505 F.2d 97, 100 (5th Cir. 1974).
12(e) Motion for More Definite Statement
12(e) states, “A party may move for a more definite
statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response.” Such motions are
not favored and are granted sparingly. Mitchell v. E-Z
Way Towers, Inc., 269 F.2d 126, 132 (5thCir.
1959); Conceal City, LLC v. Looper Law Enforcement,
LLC, 917 F.Supp.2d 611, 621 (N.D. Tex. 2013). The motion
must be made prior to filing a responsive pleading and
“must point out the defects complained of and the
details desired.” Rule 12(e). A court should only grant
a motion for more definite statement when the complaint is
“so excessively vague and ambiguous to be
unintelligible and as to prejudice the defendant seriously in
attempting to answer it.” Phillips v. ABB
Combustion Eng'g, Inc., Civ. A. No. 13-594, 2012 WL
3155224, at *2 (E.D. La. June 19, 2013). A motion for more
definite statement should not be used as a substitute for
discovery; it should be used as a remedy for unintelligible
pleading, not for correcting a lack of detail. Davenport
v. Rodriguez, 147 F.Supp.2d 630, 639 (S.D. Tex. 2001).
The court has considerable discretion in deciding whether to
grant such a motion. Ditcharo v. United Parcel Service,
Inc., 376 Fed.Appx. 432, 440 n.9 (5th Cir.
2010), citing Old Time Enterprises, Inc. v. International
Coffee Corp., 862 F.2d 1213, 1217 (5th Cir.
Court finds that none of pleadings is unintelligible here. If
anything they are to obtain more detail and obtain discovery.
There have been no objections to submissions. The exchange of
information in responses, replies and the surreply have
provided more detail that the Court has used in ruling on the
party has amended its pleading, it “may amend its
pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave
when justice so requires.” Fed.R.Civ.P. 15(a).
Amendment  Immunity
of Eleventh Amendment immunity is a jurisdictional bar and
must be addressed because, if meritorious, it deprives the
court of subject matter jurisdiction over the suit. Crane
v. State of Texas, 759 F.2d 412, 415 (5th
Cir. 1985), amended on other grounds on denial of
rehearing, 766 F.2d 193 (5th Cir. 1985),
cert. denied, 474 U.S. 1020 (1985).
Eleventh Amendment bars an individual from suing a state in
federal court unless the state consents to suit or Congress
has clearly and validly abrogated the state's sovereign
immunity.” Perez v. Region 20 Educ. Expense
Bd., 307 F.3d 318, 326 (5th Cir. 2002),
citing U.S. CONST. amend. XI; Coll. Sav. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 670 (1990). That consent must be clear and unequivocal.
Pennhurst State School & Hospital v. Halderman,
465 U.S. 88, 99 (1984). Although Congress has the power under
the commerce cause to abrogate Eleventh Amendment immunity
with regard to rights protected by the Fourteenth Amendment,
it has not often done so. See Quern v. Jordan, 440
U.S. 332, 342 (1979)(holding that 42 U.S.C. § 1983 does
not override the States' Eleventh Amendment immunity.);
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)(the
Fourteenth Amendment grants Congress the power to subject
states to suit in federal court and set aside the immunity
bar of the Eleventh Amendment; “the Eleventh Amendment,
and the principle of state sovereignty which it embodies, are
necessarily limited by the enforcement provisions of § 5
of the Fourteenth Amendment.”).
range of the Eleventh Amendment is not limited to lawsuits
naming a state as a defendant and party of record; and often
a suit will be against a political subdivision, state
instrumentalities, and state agencies. 13 Wright & Miller
et al., Federal Practice & Proc. Juris
§ 3524.2 (Apr. 2017 update). Under the Eleventh
Amendment, not all political subdivisions [of a state] are
automatically immunized when the state is immunized.”
Evans v. Bishop, 238 F.3d 586, 589 (5th
Cir. 2000). The federal district court must determine whether
that entity or individual is considered to be an “arm
of the state” entitled to the state's immunity by
examining “the essential nature and effect of the
proceeding.” Ex parte Ayers, 123 U.S. 443, 490
(1887); Ex parte Young, 209 U.S. 123, 151 (1906);
Ford Motor Co. v. Dep't of Treasury of State of
Indiana, 323 U.S. 459, 463 (1945). In addition in 1994
the Supreme Court held that “the impetus for the
Eleventh Amendment” was “the prevention of
federal-court judgments that must be paid out of a
State's treasury.” Hess v. Port Authority
Trans-Hudson Corp., 513 U.S. 30. 404 (1994), citing
Fletcher, A Historical Interpretation of the Eleventh
Amendment, 35 Stanford L. Rev. 1033, 1129 (1993). The
Hess court observed that “Courts of Appeals
have recognized the vulnerability of the State's their
status as sovereign entities.” Thus its two purposes
are to protect the State's treasury and its dignity.
Fifth Circuit applies a six-factor test to determine whether
an entity is entitled to Eleventh Amendment immunity as an
arm of the state: (1) whether the damage award ultimately
comes out of the State's treasury; (2) whether state
statutes and case law consider the agency to be an arm of the
state; (3) whether the entity is concerned with local or
statewide problems; (4) the degree of authority independent
from the state; (5) whether the entity can sue and be sued in
its own name; and (6) whether the entity has the right to
hold and use property. Clark v. Tarrant County,
Texas, 798 F.2d 736, 744 (5th Cir. 1986);
Correa v. The City of Bay City, , 981 F.Supp. 477,
478-79 (S.D. Tex. 1997).
counties, municipalities, municipal agencies, and officers of
them are determined not to be arms of the state and not
entitled to Eleventh Amendment immunity. In Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89,
123 n.34 (1984), the Supreme Court concluded that “the
Eleventh Amendment does not apply to counties and similar
municipal corporations.” See also Lake Country
Estates, Inc. v. Tahoe Regional Planning Agency, 440
U.S. 391 (1979)(We have “consistently refused to
construe the [Eleventh] Amendment to afford protection to
political subdivisions such as . . . municipalities, even
though such entities exercise a ‘slice of state
power.'”); Monell, 436 U.S. at 690 n.54;
Owen v. City of Independence, 445 U.S. 622,
638 (Under federal law “there is no tradition of
immunity for municipal corporations.”)
a state's Eleventh Amendment immunity extends to any
state agency or entity deemed to be an “alter
ego” or “arm” of the state, a plaintiff
does not have to name the state as a party in a suit.
Id., citing Vogt v. Bd. of Commissioners,
294 F.3d 684, 688-89 (5th Cir. 2002).
U.S.C. § 1983
1983 does not create substantive rights but is a procedural
rule and offers a remedy providing a private cause of action
to redress a violation of federal law; there must be an
underlying federal constitutional or federal statutory
violation as a predicate to liability under the statute.
Johnston v. Harris County Flood Control Dist., 869
F.2d 1565, 1574 (5th Cir. 1989). To state a claim
for a violation of 42 U.S.C. § 1983, a plaintiff must
establish a deprivation of a right secured by the United
States Constitution or other federal laws by a person acting
under color of state law. Albright v. Oliver, 510
U.S. 266, 271 (1994). The main purpose of the Civil Rights
Act was “to provide protection to those persons wronged
by the ‘'[m]isuse of power, possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of state law.'‘”
Owen, 445 U.S. at 650, citing Monroe v.
Pape, 365 U.S. 167 (1961).
Texas, sovereign immunity deprives a trial court of subject
matter jurisdiction for lawsuits in which governmental units
have been sued unless the state consents to suit against such
entities. University of Texas Medical Branch at Galveston
v. Kai Hui Qi, 402 S.W.3d 374, 380 (Tex. App.--Houston
[14th Dist.] 2013), citing Texas Dept. Of
Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.
2004). The Texas Tort Claims Act provides a limited waiver of
sovereign immunity, from both suit and from liability.
Miranda, 133 S.W.3d at 224, citing Tex.
Civ. Prac. & Rem. Code §§ 101.001-.109. Section
101.021 of the Act states,
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of
an employee acting within his scope of employment if
(A) the property damage, personal injury, or death arises
from the operation or use of a motor-driven vehicle or
motor-driven equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use
of tangible or real property if the governmental unit would,
were it a private person, be liable to the claimant according
to Texas law.
government may not be sued in tort unless a separate, viable
tort fits within the limited waiver provided by the [Texas
Tort Claims] Act.” Rodriguez v. Christus Spohn
Health Sys. Corp., 628 F.3d 731, 736 (S.D. Tex. 2010).
The Texas Tort Claims Act does not include a waiver for
“legislative functions of a government by consenting to
suit in federal court in the Texas Tort Claims Act for §
1983 claims.” Bishop v. City of Galveston,
Tex., no. H-11-4152, 2013 WL 960531, at *9 (S.D. Tex.
Mar. 12, 2013), citing Quern v. Jordan, 440 U.S.
332, 340-45 (1979). Nor does the Act waive sovereign immunity
for claims “arising out of assault, battery, false
imprisonment, or any other intentional tort.” Texas
Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580
(Tex. 2001); Tex. Civ. Prac. & Rem. Code §
Congress which passed the Civil Rights Act of 1871 [the
predecessor to § 1983 enacted pursuant to § 5 of
the Fourteenth Amendment], . . . did intend
municipalities and other local governments to be included
among those persons to whom § 1983 applies.”
Hutto v. Finney, 437 U.S. 678, 702 (1979),
citing Monell v. Dept. of Soc. Servs. of City of New
York, 436 U.S. 658, 665, 690 (1978)(holding that
municipalities are “persons” to whom the Civil
Rights Act of 1871 applies). Generally municipalities or
local government units are not liable for the constitutional
torts of their employees unless those employees act pursuant
to an official action or with official approval.
Monell, 436 U.S. at 663 n.7. “A municipality
cannot be held liable solely because it employs a
tortfeasor--or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior
theory.” Id. at 691. A municipality may be
liable under § 1983 if the execution of one of its
customs or policies deprives a plaintiff of his
constitutional rights. Id. at 690-91.
§ 1983 plaintiff must plead specific facts demonstrating
a constitutional deprivation and may not merely rest on
conclusory allegations. Schultea v. Wood, 47 F.3d
1427, 1433 (5th Cir. 1995).
because immunity of a municipal corporation from punitive
damages was well established at the time § 1983 was
enacted and there was no evidence that Congress intended to
abolish that immunity, today punitive damages are not
recoverable against a municipality in a § 1983 lawsuit
absent express authorization by a statute. County of
Newport v. Fact Concerts, 453 U.S. 247, 270-71 (1981);
Webster v. City of Houston, 689 F.2d 1229, 1234-37
(5thCir. 1982)(tracing legislative history of
evolving § 1983).
scope of a municipality's immunity from liability under
§ 1983 is essentially one of statutory
construction.” Owen v. City of Independence,
Mo., 445 U.S. 622, 635 (1980). “‘By its
terms, § 1983 ‘creates a species of tort liability
that on its face admits of no immunities.'”
Id., quoting Imbler v. Pachtman, 424 U.S. 409
(1976). “Its language is absolute and unqualified; no
mention is made of any privileges, immunities, or defenses.
Instead the statute states that it “imposes liability
on ‘every person' who, under color of state law or
custom, ‘subjects, or causes to be subjected, any
citizen of the United States to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws.'” Id., quoting § 1983.
Municipalities do not have immunity from suit under §
1983 flowing from its constitutional violations--neither
absolute nor qualified. Owen, 445 U.S. at 637;
Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 166-67
(1993). Furthermore, a “municipality may not assert the
good faith of its officers or agents as a defense to
liability under § 1983.” Owen v. City of
Independents, 445 U.S. 622, 638 (1980).
state a claim for municipal liability under Section 1983,
however, generally a plaintiff must identify (a) a policy
maker, (b) an official policy, and (c) a violation of
constitutional rights whose “moving force” is the
policy or custom. Piotrowski v. City of Houston
(“Piotrowski II”), 237 F.3d 567, 578
(5th Cir. 2001), citing Monell, 436 U.S.
at 694. The Fifth Circuit has defined an official policy for
purposes of § 1983 as “‘[a] policy
statement, ordinance, regulation or decision that is
officially adopted and promulgated by the municipality's
law-making officials or by an official to whom the lawmakers
have delegated policy-making authority.'” Okon
v. Harris County Hospital District, 426 Fed.Appx. 312,
316 (5th Cir. May 23, 2011), quoting Bennett
v. City of Slidell, 735 F.2d 861, 862 (5th
Cir. 1984)(en banc).
a State nor its officials acting in their official capacities
are ‘persons' under 1983.” Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
“An action by a citizen against a state official in his
official capacity is not a suit against the official but
rather is a suit against the official's office, ”
is “no different from a suit against the State itself,
” and is barred by the Eleventh Amendment, subject only
to the limited exception permitted by Ex Parte
Young, 209 U.S. 123 . . . (1908)(action seeking
prospective injunctive relief against state officer
permissible against ongoing violations of federal
a policy may be “‘a persistent widespread
practice of city officials or employees, which, although not
authorized by officially adopted and promulgated policy, is
so common and well settled as to constitute a custom that
fairly represents municipal policy.'” Id.,
citing id., and Zarnow v. City of Wichita
Falls, 614 F.3d 161, 169 (5th Cir. 2010)(“A
pattern of conduct is necessary only when the municipal
actors are not policymakers”)[, cert. denied, 131 S.Ct.
3059 (2011)]. “Allegations of an isolated incident are
not sufficient to show the existence of a custom or
policy.” Fraire v. City of Arlington, 957 F.2d
1268, 1278 (5th Cir. 1992). “The unconstitutional
conduct must be directly attributable to the municipality
through some sort of official action or imprimatur; isolated
unconstitutional actions by municipal employees will almost
never trigger liability.” Id.
of Action with § 1983:
Fourth Amendment, which is made applicable to the States by
the Fourteenth Amendment, provides that the “right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated. . . .” A seizure of property takes
place when “there is some meaningful interference with
an individual's possessory interests in that
property” by a government agent or official.
Severance v. Patterson, 566 F.3d 490, 501 (5th Cir.
2009); U.S. v. Jacobson, 466 U.S. 109, 113 (1984),
quoted by Soldal v. Cook County, Ill., 506 U.S. 61
Fourteenth Amendment (“no state shall deprive any
person of life, liberty, or property, without due process of
law”) also forbids the state to deprive a person of
property without due process. U.S. Const. amend. XIV, §
1. It has both substantive and procedural due process
components. County of Sacramento v. Lewis,
523 U.S. 833');">523 U.S. 833, 840 (1998).
due process prohibits ‘arbitrary, wrongful government
action regardless of the fairness of the procedures used to
implement them.” Zinermon v. Burch,
494 U.S. 113, 125 (1990); Lewis v. Univ. of Texas,
665 F.3d 625, 630-31 (5th Cir, 2011). The proper test for
substantive due process is the deferential “rational
basis” test: is the Defendant government's action
rationally related to a legitimate governmental interest?
FM Prop. Operating Co. v. City of Austin, 93 F.3d
167, 174 (5th Cir. 1996). Whether a rational
relation exists is a question of law for the court.
Simi, 236 F.3d at 249. “‘A violation of
substantive due process, for example, occurs only when the
government deprives someone of liberty or property, . . .
only when the government works a deprivation of a
constitutionally protected interest.'” Id.,
quoting Brennan v. Stewart, 834 F.2d 1248, 1257
(5th Cir. 1988); see also Dabbles v. Zoning
Bd. Of Adjustment, 53 F.3d 592, 601 (3d Cir.
1995)(“[I]n situations where the governmental decision
in question impinges upon a landowner's use and enjoyment
of property, a land-owning plaintiff states a substantive due
process claim where he or she alleges that the decision
limiting the intended land use was arbitrary or
capricious.”). Substantive due process analysis is
appropriate only in cases in which government arbitrarily
abuses its power to deprive individuals of constitutional
protected rights.” Id.
the procedural component of the Due Process Clause of the
Fourteenth Amendment the states must provide constitutionally
adequate procedures before depriving an individual of life,
liberty of property. Plaintiffs here must first show they
have a protected property interest and then that government
action resulted in a deprivation of that interest and that
they failed to receive all process due to them. Jabary v.
City of Allen, 547 Fed.Appx. 600, 606 (5th
Cir. Nov. 25, 2013), citing Gentilello v. Rage, 627
F.3d 540, 544 (5th Cir. 2010). It is not the
deprivation of their property rights, but the deprivation of
their interest in that property without due process of
law that is unconstitutional. Id. “Due
Process' means an “opportunity to be heard at a
meaningful time”, i.e., “‘prior to the
deprivation of the . . . property right at issue,
'” “in a meaningful manner.” Id.,
citing Cleveland Board of Educ. v. Loudermill, 470 U.S.
532, 542 (1985).
Constitution, Article 1, Section 19
1, § 19, also called the “due course of law”
provision, provides a cause of action for deprivation of
property: “No citizen of this State shall be deprived
of life, liberty, property, privileges or immunities, or in
any manner disenfranchised, except by the due course of the
law of the land.” There is no implied private right of
action for money damages under Article 1, section 19. See
Ray v. Houston Indep. Sch. Dist., Civ. A. No. H-10-312,
2010 WL 2545577, at *4 (S.D. Tex. June 21, 2010)(listing
cases holding same). The standard of review for
constitutional challenges on substantive due process grounds
is the same for both state and federal due process clauses:
“‘If the laws passed are seen to have a
reasonable relation to a proper legislative purpose and are
neither arbitrary nor discriminatory, the requirements of due
process are satisfied.'” Lucas v. U.S.,
757 S.W.2d 687, 695 (Tex. 1988), quoting Nebbia v. New
York, 291 U.S. 502, 537 (1933).
course of law provision, like the federal due process clause,
contains a procedural and a substantive component.
Barshop v. Medina County Underground Water Conservation
Dist., 925 S.W.2d 618, 632-33 (Tex. 1996), citing
Texas Workers' Compensation Com'n v.
Garcia, 893 S.W.2d 504, 525 (Tex. 1995). With a
procedural due process claim that a plaintiff is being
deprived of a property right, the government must afford an
appropriate and meaningful opportunity to be heard regarding
a decision affecting the plaintiff's property rights.
Smith v. City of League City, 338 S.W.3d 114, 127
(Tex. App.--Houston [14th Dist.] March 17, 2011).
See also Jabary, 547 Fed.Appx. at 606 (“Due
process requires an ‘opportunity to be heard at a
meaningful time and in a meaningful manner.' Generally a
“‘meaningful time' means prior to the
deprivation of the liberty or property right at
issue.'”), citing Matthew v. Eldridge, 424
U.S. 319, 333 (1976), and Bowlby v. City of Aberdeen,
Miss., 681 F.3d 215, 220 (5th Cir. 2012). A
number of Texas courts have concluded that section 19
provides an identical guarantee to its federal due process
counterpart. Garcia, 893 S.W.2d at 525 (citing
plaintiff states a substantive due process claim when he
alleges that a city took his private property for a private
purpose, not a public use. Id. at 127-28. The Fifth
Circuit, in John Corp. v. City of Houston, 214 F.3d
573, 582-83 (5th Cir. 2000), rejected “a
blanket rule [that] the Takings Clause subsumes any
substantive due process claim relating to a deprivation of
action comports with substantive due process if the action is
rationally related to a legitimate government
interest.'” Hidden Oaks Ltd. v. City of
Austin, 138 F.3d 1036, 1044 (5th Cir. 1998), quoting
FM Properties Operating Co. v. City of Austin, 93
F.3d 167, 174 (5th Cir. 1996). Whether such a rational
relation exists is a question of law. Id., citing
Id. As the Fifth Circuit held in Shelton v. City
of College Station, 780 F.2d 476, 477 (5th Cir. 1986),
the “decisions of state zoning boards do not violate
substantive due process unless the court finds no
‘'conceivable rational basis'‘ on which
the board might have based its decision.'”
Id., citing Shelton. If the City's action is
rationally related to the protection of the health and safety
of citizens, it is not actionable as a violation of the
Fourteenth Amendment. Hidden Oaks, 138 F.3d at 1044.
Since the Fourteenth Amendment to the federal Constitution
was adopted, federal courts cannot rightfully interfere with
the valid exercise of the police power to protect the lives,
health, and property of citizens because there is no taking.
Mugler v. Kansas, 123 U.S. 623, 661-62 (1887).
“[t]he Supreme Court's entire ‘regulatory
takings' law is premised on the notion that a city's
exercise of its police powers can go too far, and if it does,
there has been a taking.” John Corp. v. City of
Houston, 214 F.3d 573');">214 F.3d 573, 578 (5th Cir. 2000), citing
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415
(1922). A violation of the Takings Clause does not occur
until just compensation has been denied. Id.
National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002), to clarify differences between traditional,
discrete claims of discrimination and continuing violations
under Title XII of the Civil Rights Act of 1964, the Supreme
Court distinguished discrete acts (such as termination,
failure to promote, refusal to hire, denial of transfer,
which are individually actionable, and acts that are not, but
that may in aggregation establish a hostile work environment
claim. Discrete acts of discrimination must be asserted
within the applicable statute of limitations period (the 180-
or 300-day period for filing a charge with the appropriate
state agency, the Texas Workforce Commission, or the EEOC,
respectively); if filed later, they are time barred, even if
related to subsequent acts that are timely raised.
Id. at 113. “Each discriminatory [discrete]
act starts a new clock for filing charges alleging that
act.” Id. “Claims alleging discrete acts
are not subject to continuing violations doctrine.”
Heath, 850 F.3d at 737.
contrast, acts which are not discrete and individually
actionable and all acts constituting the claim are part of
the same unlawful practice and when aggregated, make out a
racial or sexual hostile work environment claim, which
involves repeated conduct and the cumulative effect of
ongoing acts and can happen at any time, as long as they are
connected in a pattern of similar actions that continues into
the applicable limitations period. Id. at 105. In
addition the Court found an exception to the statute of
limitations in hostile work environment claims, which would
not be barred “as long as all acts which constitute the
claim are part of the unlawful practice and at least one act
falls within the time period. Id. at 113.
“[C]onsideration of the entire scope of work
environment claim, including behavior alleged outside the
statutory time period, is permissible for purposes of
assessing liability, so long as any act contributing to that
hostile work environment takes place within the statutory
time period.” Id. As the Third Circuit
characterized it, “a plaintiff's hostile
environment claim ‘is based on the cumulative effect of
a thousand cuts, rather than on any particular action taken
by the defendant, ' so ‘the filing clock cannot
begin running with the first act because at that point
plaintiff has no claim; nor can a claim expire as to the
first act because the full course of conduct is actionable
infringement, '” Heath v. Board of Supervisors
for the Southern University and Agricultural and Mechanical
College, 850 F.3d 731, 737 (5th Cir. 2017),
quoting O'Connor v. City of Newark, 440 F.3d
125, 128 (3d Cir. 2006).
rejected views of the Fifth and Seventh Circuits that
“‘the plaintiff may not base a suit on individual
acts that occurred outside the statute of limitations unless
it would have been unreasonable to expect the plaintiff to
sue before the statute ran on such conduct.”
Heath, 850 F.3d at 737. It also rejected the
“on notice” factor: “the date on which a
plaintiff becomes aware that he or she has an actionable
Title VII claim is of no regard in the context of determining
the timeliness of a hostile work environment claim.”
Heath panel concluded the continuing violation
doctrine “applies with equal force” to §
1983 claims. It opined that Morgan's
‘distinction between ‘continuing violations'
and ‘discrete acts' is not an artifact of Title
VII, but rather a generic feature of federal employment
law.” 850 F.3d at 739-40. See also Boswell
v. Claiborne Parish Det. Ctr., 629 Fed.Appx. 580,
583 (5th Cir. 2015)(finding that a denial of
medical attention and medication for Boswell's hernia was
part of a continuing violation based on “a failure to
provide needed and requested medical attention, ” which
included an untreated cold that developed into bronchitis and
walking pneumonia). As the Morgan court observed,
536 U.S. at 116 (citations omitted),
Hostile environment claims are different in kind from
discrete acts. Their very nature involves repeated conduct.
The “unlawful employment practice” therefore
cannot be said to occur on any particular day. It occurs over
a series of days or perhaps years and, in direct contrast to
discrete acts, a single act of harassment may not be
actionable on its own. [The] “‘mere utterance of
an . . . epithet which engenders offensive feelings in a[n]
employee . . . does not sufficiently affect the conditions of
employment to implicate Title VII.” Such claims are
based on the cumulative effect of individual acts.
statute of limitations for § 1983 is derived from state
law, which, as noted, in Texas is two years, while accrual is
governed by federal common law. Id. at 740.
“The continuing violation doctrine is a federal common
law doctrine governing accrual.” Id.
III of the federal Constitution limits the jurisdiction of
federal courts to live cases and controversies. U.S. Const.
art. III, § 2; United States Parole Comm'n v.
Geraghty, 445 U.S. 388, 395 (1980). This actual
case-or-controversy requirement gives rise to the
justiciability doctrines of standing, mootness, political
question, and ripeness. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 352 (2006).
addition, the ripeness doctrine also rests on prudential
reasons for refusing to exercise jurisdiction. Reno v.
Catholic Social Services, Inc., 509 U.S. 43, 71 (1993).
The main purpose of the ripeness doctrine is “to
prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements, ” to dismiss cases that are abstract and
hypothetical. Abbott Labs. v. Gardner, 387 U.S. 136,
148 (1967), overruled on other grounds, Califano v.
Sanders, 430 U.S. 99 (1977). “Ripeness separates
those matters that are premature because the injury is
speculative and may never occur from those that are
appropriate for judicial review.” United Transp.
Union v. Foster, 205 F.3d 851, 857 (5th Cir.
2000). “Ripeness is a necessary component of subject
matter jurisdiction, and a court lacks the authority to
adjudicate issues presented before they are not yet
justiciable.” Goliad County, Texas v. Uranium
Energy Corp., CIV. A. NO. V-08-18, 2009 WL 1586688, at
*5 (S.D. Tex. June 5, 2009). “Since standing and
ripeness are essential components of federal subject-matter
jurisdiction, the lack of either can be raised at any time by
a party or by the court.” Sample v. Morrison,
406 F.3d 310, 312 (5th Cir. 2005)(per
curiam). “A case is generally ripe if any
remaining questions are purely legal ones; conversely, a case
is not ripe if further factual development is
required.” Id. In accord, Greenwich Ins. Co. v.
Capsco Industries, Inc., No. 1:14CV297-LG-JCG, 2014 WL
5025856, at *1 (S.D.Miss. Oct. 8, 2014). “If an
intervening circumstance deprives the plaintiff of a
‘personal stake in the outcome of the lawsuit, ' at
any point during litigation, the action can no longer proceed
and must be dismissed as moot.” Genesis Healthcare
Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (Apr. 16. 2013),
citing Lewis v. Continental Bank Corp., 494 U.S.
472, 477-78 (1990). “Jurisdictional issues such as
mootness and ripeness are legal questions for which review is
de novo.” Lopez v. City of Houston,
617 F.3d 336, 339 (5th Cir. 2010).
claim that is “capable of repetition, yet evading
review” is an exception to the mootness doctrine and to
satisfy it a party must meet a two-prong test:
“‘(1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that
the same complaining party would be subjected to the same
action again.'” Lopez, 617 F.3d at 340,
quoting Weinstein v. Bradford, 423 U.S. 147, 149
(1975). For the second prong, “‘the party
invoking jurisdiction must show a ‘demonstrated
probability' or ‘reasonable expectation, ' not
merely a ‘theoretical possibility, ' that it will
be subject to the same government action.'”
Id., citing Libertarian Party v. Dardenne,
595 F.3d 215, 217 (5th Cir. 2010).
of Houston's Motion to Dismiss under Rules 12(b)(1),
12(b)(6) or for More Definite Statement under Rule 12(e)
dual nature, one part governmental and the other proprietary,
of a municipality (municipal corporation) at common law gives
rise to a particular kind of protection for the municipality
from tort liability when it is acting in its governmental
capacity. Owen, 445 U.S. at 644-45. As explained in
On the one hand, the municipality was a corporate body,
capable of performing the same “proprietary”
functions as any private corporation, and liable for its
torts in the same manner and to the same extent as well. On
the other hand, the municipality was an arm of the State,
when acting in the “governmental” or
“public” capacity, it shared the immunity
traditionally accorded the sovereign.
City of Houston first asserts that the state tort claims
against it in this suit, which are all based on its
performance of governmental functions,  are barred by the
City's governmental immunity, so this Court lacks subject
matter jurisdiction over the claims against it.City
of Friendswood v. Horn, 489 S.W.3d 515, 521-22 (Tex.
App.--Houston [1st Dist.] Feb. 11, 2016, no pet.),
citing Rusk State Hosp. v.
Black, 392 S.W.3d 88, 95 (Tex. 2012)(“When
performing governmental functions, a political subdivision
derives governmental immunity from the state's sovereign
immunity. Governmental immunity encompasses the following two
principles: (1) immunity from suit, which precludes a lawsuit
against the entity unless the Legislature has expressly
consented to the suit, and (2) immunity from liability, which
precludes judgment against the government even if the
Legislature has expressly consented to suit (citations
omitted).”). The City of Houston is immune from
liability because no statute or common law authorizes the
relief Plaintiffs seek. With regard to the second
doctrine of proprietary functions a municipality was held to
the standards of a private corporation: (1) it was held
liable for its proprietary acts and for governmental
functions regarding which the State had withdrawn the
municipality's immunity by ...