Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from County Court at Law No. 3 of Nueces County,
Chief Justice Contreras and Justices Longoria and Perkes
GREGORY T. PERKES JUSTICE.
Becilia Trevino filed suit against appellant, the City of
Corpus Christi (City), alleging several causes of action
after the City issued a boil-water advisory. The trial court
denied the City's plea to the jurisdiction and the City
argues by one issue on appeal that the trial court erred. We
affirm in part and reverse and render in part.
City provides water services for its residents. In May 2016,
the City issued a twelve-day water boil advisory. Trevino, a
City resident, sued the City in May 2018, alleging that she
"was out of water for two weeks and was forced to pay
for services she was not receiving." She alleged causes
of action for negligent misrepresentation, negligence, common
law fraud, breach of contract, and "violation of
[Trevino's] civil rights pursuant to the Civil Rights
Statute." Trevino also announced her intent to have the
case certified as a class action. The trial court denied the
City's multifaceted plea to the jurisdiction and this
interlocutory appeal followed. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8).
immunity protects the State from lawsuits for money
damages." Tex. Nat. Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). "Political
subdivisions of the state, including cities, are entitled to
such immunity-referred to as governmental immunity-unless it
has been waived." Reata Const. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
"[T]o waive immunity, consent to suit
must ordinarily be found in a constitutional provision or
legislative enactment." Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 695 (Tex. 2003). "[A]
statute shall not be construed as a waiver of sovereign
immunity unless the waiver is effected by clear and
unambiguous language." Tex. Gov't Code Ann. §
Texas, governmental immunity has two components: immunity
from liability, which bars enforcement of a judgment against
a governmental entity, and immunity from suit, which bars
suit against the entity altogether." Tooke v. City
of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) (internal
citation omitted) (citing Catalina Dev., Inc. v. County
of El Paso, 121 S.W.3d 704, 705 (Tex. 2003)). While
immunity from liability is an affirmative defense, immunity
from suit deprives a trial court of subject matter
jurisdiction and thus is properly asserted in a plea to the
jurisdiction. Tex. Dep't of Transp. v. Jones, 8
S.W.3d 636, 638 (Tex. 1999) (per curiam) (citing Amador
v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex.
App.-San Antonio 1999, pet. denied)).
a general proposition, before a court may address the merits
of any case, the court must have jurisdiction over the party
or the property subject to the suit, jurisdiction over the
subject matter, jurisdiction to enter the particular
judgment, and capacity to act as a court." State Bar
of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).
Immunity from suit protects governmental units from expending
tax resources to defend lawsuits. Reata, 197 S.W.3d
at 375 (citing IT-Davy, 74 S.W.3d at 854). Thus,
"a court must not proceed on the merits of a case until
legitimate challenges to its jurisdiction have been
decided." Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
party suing the governmental entity must establish the
state's consent, which may be alleged either by reference
to a statute or to express legislative permission."
Jones, 8 S.W.3d at 638 (citing Mo. Pac. R.R. Co.
v. Brownsville Navigation Dist., 453 S.W.2d 812, 814
(Tex.1970)). "Whether a pleader has alleged facts that
affirmatively demonstrate a trial court's subject matter
jurisdiction is a question of law reviewed de novo."
Miranda, 133 S.W.3d at 226.
construe Trevino's pleaded allegations liberally to
determine whether they allege facts that establish a waiver
of governmental immunity. See Harris County v.
Annab, 547 S.W.3d 609, 612-13 (Tex. 2018). Because the
City's plea to the jurisdiction was based on
Trevino's pleadings, we accept the pleaded facts as true.
See id. If the pleadings "conclusively negate
the existence of jurisdiction[, ] . . . the suit should be
dismissed." Rusk State Hosp. v. Black, 392
S.W.3d 88, 96 (Tex. 2012).
A.Negligent Misrepresentation and ...