Court of Appeals of Texas, Fourth District, San Antonio
the 198th Judicial District Court, Kerr County, Texas Trial
Court No. 19355B Honorable Rex Emerson, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Luz Elena D. Chapa, Justice
BRYAN MARION, CHIEF JUSTICE.
Twanda Brown ("Brown") files this accelerated
appeal from the trial court's order granting
appellee's plea to the jurisdiction and dismissing
Brown's counterclaim in a suit regarding the provision of
utility services. We affirm the trial court's order and
the City of Ingram ("the City") sued Brown and
eight other defendants, seeking declaratory judgment that
Ordinance No. 2015-1 and Chapter 13 of the City Code are
"valid and reasonable exercises of the City's police
powers." Ordinance No. 2015-1 adopted and enacted
Chapter 13 of the City Code and creates a penalty for
violation of Chapter 13. Chapter 13, entitled
"Utilities," regulates the City's wastewater
answered the City's suit and asserted a counterclaim for
breach of contract, alleging the City "breached its
Contract for Wastewater Services by knowingly permitting an
unqualified, unlicensed subcontractor" to connect her
property to the City's sewer system. Brown alleged the
subcontractor's negligence "sever[ed] a gas line and
caus[ed] damages to Brown and her property."
response to Brown's counterclaim, the City filed a plea
to the jurisdiction, later amended, asserting sovereign
immunity from suit. The trial court held a hearing on the
plea to the jurisdiction and miscellaneous other motions.
During the hearing, the City offered Kerr County employee
Ashli Badders's affidavit, which states Ms. Badders was
present and personally witnessed the destruction of
Brown's septic tank. The trial court admitted the
affidavit with the attached photographs. Following the
hearing, the trial court granted the plea to the jurisdiction
and dismissed Brown's counterclaim.
days after the trial court granted the plea to the
jurisdiction, the City filed a "Supplement to Correct
the Record," asking the trial court to strike the
Badders affidavit on the basis that counsel for the City
learned, after the trial court granted the plea to the
jurisdiction, that Badders "made a mistake as to the
location of where she took the photographs attached to her
Affidavit." Brown filed an objection to the City's
request to correct the record and, in the alternative,
requested that the trial court re-open the hearing on the
plea to the jurisdiction. The record does not reflect that
the trial court ruled on either the City's request to
correct the record or Brown's request to re-open the
hearing on the plea to the jurisdiction.
files this accelerated appeal from the order granting the
plea to the jurisdiction and judgment dismissing her
immunity protects the State from lawsuits for money
damages.'" Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (quoting
Tex. Natural 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." Id.
"Sovereign immunity encompasses immunity from suit,
which bars a suit unless the state has consented, and
immunity from liability, which protects the state from
judgments even if it has consented to the suit."
Id. Sovereign immunity from suit deprives a trial
court of subject-matter jurisdiction. Id.
review the trial court's ruling on a plea to the
jurisdiction de novo. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If
the plea to the jurisdiction challenges the pleadings, we
construe the pleadings liberally to determine whether the
plaintiff has alleged facts affirmatively demonstrating the
trial court's jurisdiction to hear the case. Id.
If the plea to the jurisdiction challenges the existence of