COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-04-317-CV

CITY OF ARLINGTON, TEXAS	APPELLANT

	V.

CHARLES H. MATTHEWS	APPELLEE

	------------

	FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

	------------

	MEMORANDUM OPINION1

	------------

	The City of Arlington appeals from the trial court’s denial of its plea to the jurisdiction on Charles H. Matthews’ claims.  The primary issue we are called upon to decide is whether the “plead and be impleaded” provision of section 51.075 of the Texas Local Government Code constitutes a waiver of the City’s sovereign immunity from suit for Matthews’ intentional tort and breach of contract claims.  Based on stare decisis, we hold that this provision does waive immunity for the breach of contract claims but does not waive immunity for the intentional tort claims.  Therefore, we affirm in part and reverse and render in part.

	The facts of this case are well known to the parties and the relevant case law in this appellate district is settled.2

	A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action.3  Whether the trial court had subject matter jurisdiction is a question of law that we review de novo.4  The plaintiff has the burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction.5  In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them in favor of the pleader.6 We must also consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised.7

	Governmental entities such as the City are immune from suit unless the legislature has expressly consented to the suit.8  Absent legislative consent to sue a governmental entity, the trial court lacks subject matter jurisdiction over the case.9

	In its second issue, the City complains that the trial court erred by denying its plea to the jurisdiction on Matthews’ breach of contract claims because the City’s immunity from suit for these claims has not been waived under either section 51.075 of the local government code or the City’s charter.10

	Section 51.075 of the local government code provides that a home-rule municipality such as the City “may plead and be impleaded in any court.”11 Various panels of this court have held that this provision constitutes a waiver of immunity from suit for breach of contract claims.12  Accordingly, under controlling precedent of this court, the City’s sovereign immunity from suit for Matthews’ breach of contract claims is waived.13  We overrule the City’s second issue.14

	We now turn to the question raised in Matthews’ first issue of whether the City is immune from suit for Matthews’ intentional tort claims.  The Texas Tort Claims Act provides that a city’s immunity from suit is not waived for claims arising from intentional torts.15  Notwithstanding this provision, Matthews contends that the City’s immunity from suit has been waived by section 51.075 of the local government code.  The most recent pronouncement from this court, however, is that the specific provisions of the Tort Claims Act trump general waiver provisions such as the one contained in section 51.075.16  Accordingly, we are required by controlling precedent of this court to hold that the City’s immunity from suit for Matthews’ tort claims has not been waived.17

	Matthews also contends that the City’s misconduct arose from the exercise of its proprietary functions, for which a municipality has no sovereign immunity from suit.18  We disagree.  Matthews’ tort claims are based on the City’s alleged intentional misconduct in interfering with his post-settlement employment and attempts to obtain employment.19  These allegations relate to the operation of a police department, the hiring and firing of city employees, as well as other personnel actions,20 and the provision of police protection, all of which are governmental functions.21  Thus, Matthews’ claims arise from the City’s exercise of its governmental functions, not its proprietary functions, and the City is immune from suit for these claims.22

	For the foregoing reasons, we hold that the City has not waived its sovereign immunity from suit for Matthews’ tort claims.  Therefore, the trial court erred by denying the City’s plea to the jurisdiction as to those claims.  We sustain the City’s first issue.

	Having disposed of Matthews’ issues on appeal, we reverse the trial court’s denial of the City’s plea to the jurisdiction as to Matthews’ tort claims and render judgment dismissing those claims.  We affirm the remainder of the trial court’s judgment.

							JOHN CAYCE

							CHIEF JUSTICE

PANEL A:	CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

LIVINGSTON, J. concurs without opinion. 

DELIVERED:  February 9, 2006