Court of Appeals of Texas, Fourth District, San Antonio
the 37th Judicial District Court, Bexar County, Texas Trial
Court No. 2018CI01629 Honorable Karen H. Pozza, Judge
Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice
Liza A. Rodriguez, Justice
PATRICIA O. ALVAREZ, JUSTICE.
City of Helotes appeals the trial court's order denying
its plea to the jurisdiction. The trial court found that Jean
Marie Page's "injuries were caused by a proprietary
function." The City argues Page's injuries were the
result of a governmental function. We affirm the trial
2018, Page sued the City for injuries she sustained when a
City employee dropped a table while removing it from a parked
golf cart. She alleged the table struck the cart's
accelerator which caused the cart to propel forward and
strike her. She alleged the City employee was negligent in
leaving the golf cart's ignition in the "on"
position, in dropping the table on the accelerator, and in
misplacing the table in the golf cart which allowed the table
to strike the accelerator when the table was dropped.
accident occurred when the City employee was setting up for
an event called the "MarketPlace at Old Town
Helotes." The MarketPlace, which was first held in
August of 2008, is held on the first Saturday of each month.
The MarketPlace is described as a vendor's fair. The City
rents booths to vendors who sell crafts, merchandise, and
food, or advertise and display the services they
offer. The City has its own booth from which it
sells beer. The MarketPlace also has an area for children
with activities like an inflatable slide. The MarketPlace is
held on public streets in "Old Town Helotes," and
the streets are closed to traffic. The MarketPlace is
sponsored, supervised, regulated, operated, and managed by
City Administrator's deposition, he stated that the
rationale for the MarketPlace was "essentially economic
development to bring people into [the special district
called] Old Town Helotes to improve the finances of [the]
existing businesses [and] to generate involvement in the
community in that area." The rationale included
"economic revitalization of our Old Town Helotes
historic district." The administrator further described
it as "a place making idea. You bring people into Old
Town Helotes and it-and it helps develop that area."
City filed a plea to the jurisdiction arguing it was immune
from suit because the MarketPlace is a governmental function.
Page responded that the City was not immune from suit because
the MarketPlace is a proprietary function. The trial court
found that Page's "injuries were the result of a
proprietary function," and it denied the City's
plea. The City appeals.
to the Jurisdiction, Standard of Review
immunity protects political subdivisions of the State, such
as municipalities, from suit and liability.
Chambers-Liberty Ctys. Nav. Dist. v. State, 575
S.W.3d 339, 344 (Tex. 2019); Wasson Interests, Ltd. v.
City of Jacksonville (Wasson I), 489 S.W.3d
427, 429-30 (Tex. 2016). Because governmental immunity
implicates the trial court's jurisdiction, it may be
asserted in a plea to the jurisdiction. Chambers-Liberty
Ctys. Nav. Dist., 575 S.W.3d at 345; Tex. Dep't
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004). "Parties may submit evidence at the
plea-to-the-jurisdiction stage, and the trial court's
review generally mirrors the summary judgment standard."
Chambers-Liberty Ctys. Nav. Dist., 575 S.W.3d at 345
(citing Sampson v. Univ. of Tex. at Austin, 500
S.W.3d 380, 384 (Tex. 2016)). "When reviewing a plea to
the jurisdiction [such as this where] evidence has been
submitted to support the plea that implicates the merits of
the case, we take as true all evidence favorable to the
nonmovant. We indulge every reasonable inference and resolve
any doubts in the nonmovant's favor."
Miranda, 133 S.W.3d at 228 (citation omitted).
"If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the
plea to the jurisdiction, and the fact issue will be resolved
by the fact finder." Chambers-Liberty Ctys. Nav.
Dist., 575 S.W.3d at 345 (quoting Miranda, 133
S.W.3d at 227-28). "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;
accord Chambers-Liberty Ctys. Nav. Dist., 575 S.W.3d
governmental/proprietary dichotomy recognizes that immunity
protects a governmental unit from suits based on its
performance of a governmental function but not a proprietary
function." Wasson Interests, Ltd. v. City of
Jacksonville (Wasson II), 559 S.W.3d 142, 146
(Tex. 2018). The State's sovereignty shields a
municipality when the municipality acts "'as a
branch' of the State but not when [it acts] 'in a
proprietary, non-governmental capacity.'"
Id. (quoting Wasson I, 489 S.W.3d at 430).
But if a municipality performs a proprietary function, it is
subject "to the same duties and liabilities as those
incurred by private persons and corporations."
Id. (quoting Gates v. City of Dall., 704
S.W.2d 737, 739 (Tex. 1986)).