### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00551- CV

The City of Au stin d/ b/a Aus tin En ergy, A ppellan t

v. Lib ert y Mutual Ins urance; Safeco Insurance Com pany of Ind iana; Travelers C asualty Insu rance C om pany of

Am eric a; Travele rs Lloyds of Texas Insu rance C om pany; Th e Traveler s Hom e and Marine Insurance Com pany; Travelers Com m erc ial In surance Com pany; Dani el and Kather ine Sterns, Ind ividu ally and as Next F riend of [re dacted], a Minor; William McC urley; Elizabeth Harpine; and An ne Elise and Michael A. Stoc k, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 2-0 0345 1, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

O P I N I O N
The City of Austin d/b/a Austin Energ y (“the City ”) a

ppeals the tria l court’s de nial of it s Ru le 9 1 a motion to dismiss inverse- condemna tion claims and common-law tort claims asser ted
ag ainst it by appellee s L iberty Mutual I nsuranc e; Safec o I nsuranc e Company of I ndiana; Trave lers Casualty I nsuranc e C o m p any of Americ a; Trave lers L loy ds of Texas I nsuranc e Company ; The
T ravelers Home and Marine I nsuranc e Company ; Trave lers Commercial I nsuranc e Company (collec tively , “the I nsurer s”); and Daniel and Ka therine Sterns, I ndividually

and as N ext Fr iend of [redacte d], a Minor; Wil liam McCurley ; Eliz abeth Har pine; and Anne Elise and Michae l A

. Stock (c o l l ec tively , “the Homeowne rs”)

. See Tex. R. Civ. P. 91a (per mitti ng party to move to dismis s

cause of action on g rounds that it has no basis in law or fac t). The trial court found that the I nsurer sand the Homeowne rs had pleade d claims within the court’s jurisdiction and denied the City ’s Rule

91a motion. The City perf ecte d this appea l and in three issues contends the trial court err ed in deny ing its Rule 91a motion beca use the appellee s’ pleading s wer e insufficient to alleg e a cog nizabl e inverse- condemna tion claim, the appellee s’ common-law tort claims wer e barr ed by g overnme ntal immunit y , and eac h of the appellee s failed to comply with a notice-of -injury require ment contained
in the Austin City Charter

. The City invoked this Court’s jurisdiction over i n t er l o cu tory appea ls from the denial of a challeng e to t he trial court’s subject-matter jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a) (8). We will aff irm the judgme nt in part and reve rse and dismiss in part.

F ACTUAL AND P ROCEDURAL BACK GR OUND Appellee s’ claims arise out of a wildfire that started on September 4, 2011, in a vaca nt lot in wester

n Tra vis County and sprea d into the Steiner Ranch neig hborhood, causing persona l injury and extensive proper ty damag e. The I nsurer s broug ht their actions as subrog ation claims on behalf of a number of their insured proper ty owner s. The Homeowne rs com p rise three families bring ing claims for uninsured fire losses, including proper ty damag e and persona l injury

. Appellee s

asser t that the City is res p o nsible for the fire, which they alleg e started when the elec tric utilit y ’s overhe ad distribution lines came in contac t with eac h other d u ri n g high winds, causing elec trical

arc ing, which in turn cause d “molten metal g lobules” to fall to the g round and ignite dry veg etation.
T h e fi re g rew quickly , and wind-borne ember s from the fire cause d it to cross Hig hway 62 0 an d
sprea d into the Steiner Ranch ne ighbor hood. The first petition rela

ting to the fire was filed in November 2012. There afte r, a number of parties, including the I nsurer s and the Homeowne rs, interve ned in the suit a sserting the

2same three cause s of action: (1) inverse condemna tion; (2) neg lige nce; and (3) trespass. Appellee s

alleg ed that the pre sence of excessive slac k in the overhe ad distribution lines was the re sult of the City ’s ear lier decision, made as a cost-saving measure , to forg o reg ular inspections of its overhe ad distribution lines, as well as the City ’s fa i l u re t o implement a preve ntive-maintena nce plan but
i n s t ea d adopting a repa ir-as- neede d approa ch. Appellee s alleg ed that, as a conseque nce, t h e extremely high wind conditions tha t oc curr ed during a time w hen Central Texas was experiencing

a sever e droug ht cause d the distribution lines to come into contac t with eac h other, resulti ng in a wildfire that bur

ned out of c ontrol and ca

used substantial proper

ty damag e and pe rsonal injury

. The City filed a motion to dismiss pursuant to Rule 91a of the Texas Rules of Civil Procedur e. Entitled “Dismissal of Ba seless Causes of Action,” Rule 91a allows a party to move to dismiss a cause of action on the g round that it has no basis in law or in fac t. See Tex. R. Civ. P. 91a. The rule is in addition to, and does not superse de or aff ect, other proce dures that authorize dismiss al. Id. R. 91a.9. As spec ified in the rule:

A ca use of a ction has no basis i n law if the a lleg ations, taken a s true, tog ether with infere nces re as o nably draw n from them, do not entitle the claimant to the relief soug ht. A cause of action has no basis in fac t if no rea sonable person could believe the fa cts pleade d.

Id. R. 91a.1. A m otion to dismiss must identif y ea ch ca u s e of action to which it is addre ssed and
must state specific ally the rea sons the cause of action has no basis in la w, no basis in f

act, or both. Id. R. 91a.2. The tria l court may not consider e vidence in ruling on the motion. Id. R. 91a.6.
I n its motion, the City asser ted that appellee s’ petitions did not sufficie ntly alleg e the “intent” and “public use” elements require d for g overnme ntal action to qualify as a taking

. The City

3contende d that beca use appellee s failed to plead a valid taking s claim, the City reta ined its
g overnme ntal immunit y . Wit h respe ct to the tort claims, the City asser ted that the activities alleg ed
to have cause d harm to appellee s wer e not proprieta ry functions for which the City could be subject
to suit, but instead co nstitut ed the g overnme ntal activities of “fire protec tion and control” and “eng ineer ing functions,” for which it is immune from suit absent a clea r and unambig uous leg islative waiver of that immunit y . The City also arg ued th at appellee s’ failure to comply with notice provisions contained in the Austin City Charter constituted incura ble jurisdictional defe cts. I n

essenc e, the City asser

ted that appellee s failed to alleg e viable cause s of action not barr ed by
g overnme ntal immunit y and that its immunit y deprive d the trial court of subject-matter jurisdiction. The trial court denied the City ’s Rule 91a motion, rec iting in its order that appellee s had sufficie ntly stated cla ims withi n the cour t’s jurisdiction. The City perf ecte d this appeal.
I n the present case , the R ule 91a motion challeng ed the trial court’s subject-matter jurisdiction over the claims asser t ed ; t h er ef

ore, section 51.014(a) (8) aff ords the City a rig ht to an interlocutory

appea l of the trial cour

t’s denial of the motion.

STANDARD OF REVIEW Whether a court has subject-matter jurisdiction over a ca se is a question of law, which

we revie w de novo. Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). 1

Reciting the lang uag e of Rule 91a, the City asser ts that this C ourt “must reve rse the tr ial 1 court’s denial of the City ’s Rule 91a motion if ‘the alleg ations, taken as true, toge ther with infere nces rea sonably draw n from them, do not entitle the claimant to the relief soug ht.’” This Court g ener ally does not have jurisdiction over an appea l from an interlocutory order deny i n g a Ru l e 91a motion. The only basis for the Court’s jurisdiction over this appea l is that here the Rule 91a motion was used to c halleng e the trial court’s subject-matter jurisdiction a nd there fore eff

ectively constitutes a plea 4T h er e are two g ener al cate g ories of pleas to the jurisdiction: (1) those that challenge o n l y t h e

pleading s, and (2) those that prese nt evidenc e to challeng e the exis tence of jurisdictional fac ts. Id

. When, as here , a plea to the jurisdiction challeng es only the pleading s, we d eter mine whether the pleade r has alleg ed fac ts that aff irmatively demonstrate the court’s jurisdiction to hear the case . Id.
Our de novo revie w of such challeng es looks to the pleade r’s intent a nd construes the pleading s in its favor

. Id. I f the pleading s lack sufficie nt fac ts to aff irmatively dem o n s t rate the trial court’s jurisdiction but do not aff irmatively demonstrate incurable defe cts in jurisdiction, the i ssue i s one of pleading sufficie ncy , and the plaintiff should g ener ally be g iven an opportunity to amend. Id.
at 226-27.

DISCUSSIO N

“Sovere ign immunity

protec ts the State from lawsuits for money damag es.” Texas Natural Res. Conservation Comm’n v. IT-Davy , 74 S.W .3d 849, 853 (Tex. 2 0 0 2 ). Polit ical subdivisions of the state, including cities, are entitled to such immunit y —ref err ed to in this context

as “g overnme ntal immunit y ”—unless it has been waived by statute or the constituti o n . Reata Constr. Corp. v. City of Dallas , 197 S.W .3d 3 7 1 , 3 7 4 (Tex. 2006); W ichita Falls State Hosp.

v. Taylor , 106 S.W .3d 692, 694 n.3, 695 (Tex. 2003). Appellee s asser t that Article I , section 17 of

to the jurisd i ct i o n . See Tex. Civ. Prac. & Rem. Code § 51.014(a) (8) (per son may appea l from interlocutory

order that g rants or de nies plea to jurisdiction by g overnme ntal unit); Texas De p’t of Crim. Justice v. Simons , 140 S.W .3d 338, 349 (Tex

. 2004) (“The ref ere nce to ‘plea to the jurisdiction’ [i n section 51.014(a )(8) ] i s not to a particular pr ocedur al vehicle but to the substance of t he is sue raised. Thus, an interloc utory appea l may

be taken from a ref

usal to dismiss for want of jurisdiction whether

the jurisdictional arg ument is presente d by plea to the jurisdiction or some other vehicle, such as a motion for summary judgme nt.”). We there fore revie w the trial court’s order using the standard of

revie w for ple as to the jurisdiction that challeng e only the pleading s. 5the Texas Constit ution, known as the “taking s clause ,” waives the C i t y ’s immunit y from their

inverse- condemna tion claim. See Tex. Const. art. I , § 1 7 ; State v. Holland , 221 S.W .3d 639, 643 (Tex. 2007) (“A rticle I , section 17 waives immunit y for taking s.”); City of New Braunfels

v. Carowest Land, Ltd. , No. 03-11-00699- CV, 2014 WL 1 774535, at *6 (Tex. App.—Austin Apr. 30, 2014, no pet. h.) (“B eca use this cause of action is cre ated by the Texas Constit ution, a valid taking s claim is not barr ed by common-law doctrine s o f s o vere ign and g overnme ntal immunit y .” (citing Holland , 221 S.W .3d at 643 and Gene ral Servs. Comm’n v. Litt le-T ex In sulation Co. , 39 S.W .3d 591, 598 (Tex. 2001)). The City counter s that appellee s’ pleading s failed to asser t a valid taking s claim, in the absenc e of which the City reta ined its immunit y from their cause s of action for inverse condemnation. See Lit tle-Tex Insulation Co. , 3 9 S

. W

. 3d at 598-99 (immunity reta ined i n absenc e of proper ly pleade d taking s claim); Carowest Land, Ltd. , 2014 WL 1 7 74535, at *6 (if plaintiff cannot establish viable t aking s claim aga inst g overnme ntal entity , claim would implicate immunit y and potentially be barr ed by it (citing Texas Dep’ t of Transp. v. A.P.I. Pipe & Supply, LLC , 397 S.W .3d 162, 166 (Tex. 2013)).

Wit h respe ct to their tort claims, appellee s asser t that the City ’s conduct forming the basis of those claims was the perf ormanc e of a proprietary fu n ct i on for which the City is not immune, specific ally the opera tion and maintenanc e of a public utilit y . See Tex. Civ. Prac. & Rem. Code § 101.0215(b)( 1) (oper ati o n and maintenanc e of public utilit y is listed in “propr ietary functions, which are those functions that a municipality may , in its discretion, perf orm in the interest of the inhabitants of the municipality ”); Tooke v. City of M exia , 197 S.W .3d 325, 343 (Tex. 2006) (“A municipality is not immune from suit for torts committed in the perf ormanc e of its proprieta

ry

6functions, as it is for torts committed in the perf ormanc e of its g overnme ntal functions.”)

. But the City maintains that the activities that appellee s alleg e cause d damag e to their proper ty wer e part of the City ’s perf

ormanc e of “fire protec tion and control” and “eng ineer ing functions,” g overnme ntal activities for w hich it is im mune. See Tex. Ci v. Prac. & Rem. Code § 101.0215(a) (fire protec tion and control and eng ineer ing functions are “g overnme ntal functions, which are those functions that

are enjoined on a municipality by law and are g iven it by the state as part of the state’s sovere ignty , to be exercised by the municipality in the intere s t o f t h e gen era l public”). We must, there fore , revie w appellee s’ pleading s to deter mine whether they alleg e fac ts aff irmatively demonstrating the court’s jurisdiction to hea r their inver se-c ondemnation and tort c laims ag ainst the City

. 2

Inverse-Condemn ation C laim
I n its first issue , t h e C i t y asser ts that the trial court should have dismiss ed the inverse- condemna tion claims for lack of subject-matter jurisdic t i o n b ecause appellee s did not sufficie ntly alleg e fac ts establishing that the City acte d with the intent require d for g ov er n m ental action to constitute a “taking ” under the Texas Constit ution. The City also arg ued that the pleading s did not alleg e fac ts establishing that appellee s’ proper ty was damag ed for a “public use.” See Tex. Const. art. I , § 17 (“No p er s o n ’s p roper ty shall be taken, damag ed or destroy ed for or applied
to public use without adequate comp en s at i o n b eing made

. . . .”); City of Dallas v. Jennings , 142 S.W .3d 310, 313 (Tex. 2004) (only intentional act ca

n g ive rise to taking ).

The rele vant fac tual allega t i o n s i n the I nsurer s’ and the Homeowne rs’ pleading s are 2 virtually identical. 7The I nsurer s and the Homeowne rs fi le d c la im s f o r in v e r s e c ondemnation alleg ing that the City took private proper ty without pay ing adequate compensa tion. See W estgate, Ltd. v. State , 843 S.W .2d 448, 452 (Tex. 1992) (if g overnme ntal entities appropr iate proper ty without
pay ing adequa

te compensation, proper ty owner may rec over resulting damag es throug h inverse- condemna tion claim). The taking s clause of the Texas Constit ution i s a clea r and unambig uous waiver of immunit y from suit for inverse- condemna tion claims. Tex. Const. ar t. I , § 17. There fore , g overnme ntal immunit y does n o t s hield the C ity from a proper ly pleade d claim 3
for compensa tion under the t ak i n g s clause of the fede ral or state constitution. See Holland , 221 S.W .3d at 643; W

estgate, Ltd. , 843 S.W .2d at 452. To proper ly asser t an inverse- condemna tion claim ag ainst a g overnme ntal entity , a party must plead that the g overnme ntal entity (1) eng ag ed in

a specific act that resulted in the taking , damag ing, or destroy ing of private proper ty ; (2) eng ag ed in the act intentionally , i

. e. , either knowing that the specific act was causing identifiable harm or knowing that specific proper ty damag e was substantially cer tain to result; and (3) took the proper ty fo r a public use. See Southwestern Bell Tel., L.P. v. Harris Cnty. , 267 S.W .3d 490, 495 (Tex. App.—Houston [14t h Dist.] 2008, no pet.); see also City of San Antonio v. Pollock , 284 S.W .3d 809,
812 (Tex. 2009) (dismissing taking s and nuisance claims due to lack of evidenc e that city knew its actions wer e substantially cer tain to cause harm). Neg lige nce that mere ly contributes to the damag e

Appellee s also alleg ed a fede ral taking s claim pursuant to the J ust Compensation Cl ause 3 of the Fifth Amendment to the United States Constit ution. U.S. Const. amend. V (private proper ty shall not be taken for public use without just compensa tion). We con s i d er t h e fede ral and state taking s claims toge ther. See Hearts Bluff Game Ranch, Inc

. v. S t ate , 381 S.W .3d 468, 477 (Tex. 2012), cert. denied , 133 S. Ct. 1999 (U.S. 2013) (case law on taking s under Te x as Constitut ion is consistent with fede ral jurisprudenc e, and analy sis for fede ral and s t at e t ak i ng s claim is complementar

y ). 8to or destruction of property does not consti t u t e a taking

. City of Tyler v. L ikes , 962 S.W .2d 489,

505 (Tex. 1997).

We f irst a ddress the City ’s contention that the pleading s fail to alleg e fac ts meeting the intent require ment for a taking s claim. Appellee s did not attempt to plead—a nd d o n o t contend—that the City desired that their proper ty be damag ed. Rather, they arg ue that they pleade d

an intentional g overnme ntal act—the City ’s adoption of what appellee s call a “wa it until it brea ks”
approa ch rathe r than having a reg ular maintenanc e prog ram—that the City knew was substantially

cer tain to lead to such damag e. To sufficie ntly alleg e the intent element for a taking s claim, it is not
enoug h mere ly to alleg e that the act causing the damag e was intentional. See Jennings , 142 S.W .3d at 313. Rather, a

party must alleg e that the g overnme ntal entity intended the r esulting damage , or
at least knew that the damag e was substantially cer tain to occur . See id. (prope rty is “dama g ed for public use” when g overnme ntal entity is awa re that its action will nece ssarily cause phy sical damag e
to cer tain private proper

ty y et deter

mines that benef

it to public outweig hs harm). For damag e to be

a “substantially cer

tain” result of conduct require s more than that it was possible, at incre ased risk,

or even more likely than not to occur . See Pollock , 284 S.W .3d at 821 (“The g overnme ntal entity ’s

awa rene ss of the mere possibili ty of damag e is no evidenc e of intent.”); Gulf Coast W aste Disposal Auth. v. Four Seasons Equip., Inc. , 321 S.W .3d 168, 175 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that “alleg ations demonstrat[ing] awa rene ss . . . that an incre ased risk exis ted” did not satisfy “nec essar ily incident to or a conseque ntial result of” intent standard in taking s case ). To have the requisite intent, a g overnme ntal entity must have known that the d am age complained of was substantially cer

tain to occ u r as a result of i ts conduct, meaning that the damage was “nece ssarily

9an incident to, or ne cessa rily a consequential result of the [entity ’s] action.” Pollock , 284 S.W .3d
at 821 (quoting Jennings , 142 S.W .3d at 314). Thus, for an ac t to give r ise to a taking s claim, the
act must at least be one in which the inevitability of d am age i s s o o b vious that its incurre nce is deeme d to be the delibera te infliction of harm for the purpose o f car ry ing out the g overnme ntal projec t. Intentionally causing the damag e clea rly falls within this standard; so, too, does acting with knowledg e that t h e d am age was substantial ly certain to result from the conduct. Jennings , 142 S.W .3d at 314. Appellee s’ pleading s there fore must alleg e fac ts that, taken as true, demonstrate that the City knew that a wildfire that would damag e or destroy private proper ty was the “nec essar

y 4
incident” of its conduct, which we understand to m ean tha t it was “almost” ce rtain to occ ur as the result of the City ’s dec ision reg arding maintenanc e of its over head e lectric -distribution wires.
A p p e ll e e s ’ pleading s alleg ed the following series of events culmin a ti n g in th e d a

ma g e
to their p ro p erty : (1) the City aff irmatively decide d, as a cost-saving measure , to discontinue inspections of its o v er h ea d p o we r lines; (2) as a result of this decision, the rele vant power lines
eventua lly lost tension, which allowed for excessive slack in one or more of the lines; (3) the power lines beca me sufficie ntly slack that, under conditions such as high winds, they could come in contac t with e ach other; (4) circ umstances arose , specific ally high winds, that did in fac t cause the lines to

come in contac t with eac h other; (5) the contac t of the lines cause d elect ri cal arc ing that cre ated molten metal g lobules to form on the lines; (6) the molten metal g lobules fell from the line onto dry
veg etation, which ignited; and (7) the resulting fire was not contained and ultimately cause d persona l injury and dama g e to their prope rty

.

We need not and do not addre ss whether the City would have to have known that damag e 4 to specific identifiable proper ty was substantially

cer tain to result. 10For appellee s’ taking s claims to be valid, the damag e from the fire h ad t o b e the

almost-cer

tain result of the City ’s fiscally driven decision to curta il inspection of its overhe ad power lines. The City had to know at the time it made the decision that the chain of events outlined above

was “substantiall y ce rt ai n ” to result from that decision. See Pollock , 284 S.W .3d at 821 (g overnme nt’s knowledg e must be dete rmined as of time it acted, not with benef it of hindsight).
I n our vi ew, whether this wildfire was the s ubstanti al l y ce rtain consequence of t he City ’s decision to discontinue power -line inspections is a leg al question. We conclude that the fac ts pleade d by appellee s do not rea sonably permit a conclusion that the fire and resulting damag e wer e

s u bstantially cer

tain to occur . The rele vant power lines, even if not inspected, wer e not “almost

cer tain” to become so slack that they would contac t eac h other in high winds. Even if they beca me slack enoug h to allow for contac t, it was not “almost cer tain” that those wires would actua lly come in contac t with eac h other in hig h winds. And eve n if they did come in contac t with each othe r, it

was not “almost cer

tain” that such contac t would cause elec trical arc ing sufficie nt to cre ate molten metal g lobules that would then fall to the g round. Nor was it almost cer tain that any molten g lobules that fell would fall onto veg etation as oppos ed t o a l es s flammable surfa ce such as a roadw ay or parking lot or, for that matter , on green veg etation af ter the c urre nt droug ht has ende d.
We conclude that the series of events that connec ts the City ’s maintenanc e decision
to the proper

ty damag e, while arg uably fore seea ble, was not an almost-cer tain result of or nece ssarily incident to that decision. At best, appellee s’ fac tual alleg ations would show that the City ’s conduct furnished a condition tha t made proper ty damag e a substantial risk. That is far differ ent, howeve r, from being the substantial ce rt ainty require d for a valid taking s claim. Tolera tion of a dang erous

11condition may or may not set the stag e for a subsequent disaster, y et, as discussed above, only if the

event causing damag e is the substantially cer tain result of the conduct can the City be char g ed with the requisite level of intent to constitute a taking

. The fac t that a disaster happens does not, by virtue of its occur

renc e, mea

n that it was a substantial ce rtainty from the outset Although appellee s’ pleading s alleg e that “a wildfire is a substantially cer tain result” of the City ’s lack of a maintenanc e prog ram, this is mere ly a l egal conclusion as opposed to an alleg ation of fac ts supporting that conclusion. Such a leg al conclusion need not be taken as true in eval u at ing the sufficie ncy of the pleading s. See Gattis v. Duty , 349 S.W .3d 193, 200 (Tex.
A p p.—Austin 2011, no pet.) (unsupported leg al conclusions are insuf f ic ie n t to me e t p le a d e r ’ s b u

r d e n
to alleg e fac ts aff

irmatively demonstrating trial court’s jurisdiction); see also City of Elsa

v. Gonzalez , 325 S.W .3d 622, 625 (T ex . 2 010) (conc lusory pleading s wer e insufficient to show jurisdictional fac ts neede d to deter mine i f trial court had jurisdiction). Be cause appellee s do not all ege fa ct s s h o wing that the fire was substantially cer tain to occur as a result of the City ’s maintenanc e decision, it nece ssarily follows that the City could not be char g ed with knowing that that decision was substantially cer tain to cause the fire. We ag ree with the City that appellee s’ petitions do not plead fac ts meeting the intent require ment for a g overnme ntal tak i n g and thus do not aff irmatively

demonstrate the court’s jurisdiction over their inverse -conde mnation claims.
For simil ar rea sons, appellee s’ alleg ations likewise do not support their asser tion that the proper

ty was dama ged for public use , another require ment for a valid inverse- condemna tion claim. As an initial matter, we observe that when there is no intent or substantial cer tainty of damag e

as a result of g overnme nt conduct, it is difficult to conce ive how the proper ty could be said to have

12been taken or damag ed for public use . See Jennings , 142 S.W .3d at 313-14 (whe n g overnme nt did

not desire proper

ty to be damag ed, taking s liability arises only if g overnme nt knows that damag e is substantially cer

tain to result). On appea l, the public use asser ted by appel l ee s is “powe r transmission.” But appellees do not allege or ex plain how t he damag e to their property advanc ed that purpose. I t is self-e vident that the fire was not the substantially cer tain result of the City ’s mere provision of elec tric power , nor was it nece ssary that it occur in order for the City to provide power
to its residents. When proper ty damag e is an unintended result of the go v er n m en t’s act or policy , it cannot be said that the proper ty was “take n or damag ed for public use .” Id. at 313 (citing
Texas Highway Dep’ t v. W eber , 219 S.W .2d 70, 71 (Tex. 194 9 ), an d Steele v. City of Houston , 603 S.W .2d 786, 791-92 (Tex. 1980)). Unless it was substantially cer tain to occur , the fac t that some
proper ty ultimately suffe red harm as a result of the City ’s power -transmission activities underta ken for the benef

it of the public does not mean that the proper ty was damag ed in order to effectuate that public benef

it

. See W

eber , 219 S.W .2d at 71 (prope rty is “dama g ed for public use” when
g overnme ntal entity is awa re that its actions wi l l nece ssarily cause phy sical damag e to private
proper ty y et deter mines that benef

it to publi c outweig hs harm ca used to that proper

ty ). Although they do not arg ue it in their appellate brief, appellee s’ trial-cour t pleading s alleg ed that the City ’s maintenanc e decision “re duced the utilit y ’s opera ting budg et by eliminating
costs” and “this benef

it wa s re al i z ed by Austin Energ y and the public at larg e.” Thus, appellee s
appea r to have alleg ed in the trial court that the public use for which their proper ty was damag ed was
to reduc e the City ’s opera ting budg et and there by incre ase the municipali t y ’s general fund. The desired c ost savings would, howeve r, have been achieve d reg ardle ss of whether the fire occur red;

13beca

use the fire was not substantially cer tain to occur or “nec essar ily an incident to” the cost saving s, we conclude that appellee s’ prope rty was not dama g ed “

for that public use.” A

ppellees’ petitions fail to plead fac ts showing that their proper ty was damag ed for publi c u s e an d h ave, for this additional rea son, failed to aff irmatively demonstrate the court’s jurisdiction over the inverse- condemna tion claims.

Having conclude d that the I nsurer s’ and Homeowne rs’ pleading s failed to state valid taking s claims, the City reta ins its immunit y from those claims; the trial cou rt t h erefore lacks subject-matter

jurisdiction over them. We sustain the City ’s first appe llate issue.

Com m on-Law Clai m s

I n its second issue, the City contends the trial court should have g rante d its Rule 91a motion to dismiss the I nsurer s’ and Hom e o w ners’ common-law tort claims for lack of subject-matter jurisdiction beca

use they arise from the City ’s perf ormanc e of g overnme ntal activities, specific ally “fire protec tion and co n t rol ” and “eng ineer ing functions,” as opposed to proprieta ry functions.
Gover nmental functions are those that a municipality car ries out as an arm of the State for the
purpose of serving the g ener al public. See Tex. Civ. Prac. & Rem. Co d e § 1 0 1.0215(a) ; City of
Houston v. Southwest Concrete Constr., Inc. , 835 SW .2d 728, 730 ( T e x. A p p . — H o u s ton [14t h Dist.] 1992, writ denied) . By

contra st, proprietar

y functions ar e func tions that a municipality may , in its discretion, perf

orm in the i n t er es t o f the inhabitants of the municipality

. Tex. Civ. Prac. & Rem. Code § 101.0215(b). Appel l ee s co u nter that their tort claims arise from the City ’s opera tion of a public utilit y , which is a proprieta ry function. A city has immunit y from suit for torts arising out of its g overnme ntal functions but not for torts arising out of its proprieta ry fu n ct i ons. Tooke ,
14197 S.W .3d at 343; see also City of San Antonio v. BSR W ater Co. , 190 S.W .3d 747, 752-53 (Tex. App.—San Antonio 2005, no pet.) (discussing municipality ’s g overnme ntal functions, for which it is aff orded immunit y unless waived under Texas Tort Claims Act, and its proprieta ry functions, for which ther e is no g overnme ntal immunit y ).
I t is well s ettled t hat, wit h respe ct t o tort claims, the operation an d m ai ntenanc e of

a public utilit y is a proprieta ry function, for which the municipality does n o t enjoy g overnme ntal immunit y . See Tex. Civ. Prac. & Rem. Code § 101.0215(b)( 1) (listing “oper ation and maintenanc e of a public utilit y ” as proprieta ry function); Tooke , 197 S.W .3d at 343; San Antonio Indep. Sch. Dist.

v. City of San Antonio , 550 S.W .2d 262, 264 (Tex. 1976) (oper ation of public utilit y is pr oprietar y function under common law). The City contends, howeve r, that even though the specific activities forming the basis of ap p el l ee s ’ claims wer e perf ormed in the context of its opera tion of a public utilit y , those activities fall within a cate g ory of activities deeme d “g overnme ntal” and there fore are aff orded immunit y . Civil Practice and Remedies Code section 101.0215 provides, in pertinent part:
(a) A municipality is liabl e u n d er this chapte r for damag es arising from its g overnme ntal functions , wh i ch are those functions that are enjoined on a m u n i ci p ality by law and are g iven it by the state as part of the st at e’ s sovere ignty , to be exercised by the municipality in the interest of the g ener al public, including but not limited to: (1) police and f

ire prote ction and contr ol;

. . . . (30) eng ineer ing f

unctions;

. . . . (b) This chapte r does not apply to the liability of a municipality for damag es arising from its proprieta ry functions, which are those functions that a

15municipality may , in its discretion, perf orm in the interest of the inhabitants of the municipality , including but not limited to: (1) the oper ation and maintena nce of a public utility ;

. . . . (c) The proprieta

ry functions of a municipali t y do not include those g overnme ntal activities listed under Subsection (a ).

Tex. Civ. Prac. & Rem

. C o d e § 1 01.0215. The City maintains that subsection (c) of section 5
101.0215 opera tes to cre ate a ty pe of “saf

e harbor ” that extends immunit y to ac t i v i t i es that are i d entified in subsection (a) as “g overnme ntal” even though perf ormed in the context of wha t i s plainly a propr ietary

function as listed in subsection (b)

. W e first consider whether the activities that form the basis of the appellee s’ tort claims could be char acte rized as “fire protec tion and control. ” Ap p ellees alleg ed that the City brea ched the applicable standard of car e by , among other thing s, failing to:

• maintain proper

tension in the subject elec trical lines;

• position t he lines with sufficie nt space betwee n the ene rg ized power lines;

• safe ly , proper ly , and adequately own, operate, inspec t, repa ir, and maintain its right-of

-wa y equipment;

• adher e to utilit y line maintenanc e standar d s i n acc ordanc e with rec og nized and ac cepte d industry

standards a

nd prac tices;

By s t at i n g t h at a muni cipality is “liable under t his chapte r,” subsection (a) of t he st atute 5 means that a city may be sued only pursuant to the waiver provisions of the chapte r. By stating that the chapte r “does not apply to” liability for damag es arising from a city ’s proprieta ry functions, subsectio n (b ) recog nizes that no waiver of immunit y under the Tort Claims Act is nece ssary for such dama g es. 16• take appropr iate prec autionary safe ty measure s to avoid conditions that could prese nt an unre asonable risk of injury to people and pr operty ;

• monitor and inspect its ease ments and power lin es to ensure its elec tricdistribution s y stem was saf e and f it for its intended use;

• test elec trical lines to ensure proper tension and confirm that they wer e safe ; and

• rec og nize possible safe ty threa ts, fire hazards, and other d an gerous conditions.
I n essenc e, appellees complain that the C ity neg lige ntly perf ormed it s obliga tion to safely opera te and maintain its elec tric-distribution sy stem.

We conclude that the activities complained of do not co n s t itute municipal action

car ried out as a

n arm of the S tate for the purpose of controlling fires or

protec ting the public f

rom fires. Activities (or, in this case , non -ac tiviti es) that serve only to create a fire risk cannot rea sonably be considere d to constitute “fire protec tion and control” activities. Appellee s alleg e that the City ’s
opera tion of the public utilit y creat ed a gre at er risk of fire and thus wer e activities that actua lly frustra ted, rathe r than serve d to perf orm, the g overnme ntal function of “fire protec tion and control.” The City counter s that the activities complained of are “close ly rela ted to” or “assoc iated with” fire protec tion and control such that it should be considere d to have been perf orming a g overnme ntal function. See , e.g. , City of Houston v. Petroleum Traders Corp. , 261 SW .3d 350, 356-57 (Tex. App.—Houston [14t h Dist.] 200 8 , n o pet.) (city ’s purcha se of g as for its police cruiser s was underta ken as part of g overnme ntal function of aff ording police protec tion and th er efor e was
g overnme ntal, rathe r than proprieta ry , activity

). We ag ree with a

ppellees. The alleg ed failure s by

17the City to safe ly opera te its p u blic utilit y do not rese mble activities underta ken in pursuit of the
g overnme ntal function of c ontrolling a nd protec ting a g ainst fires.
Nor do we ag ree that the complained- of activit i es fall within the “eng ineer ing functions” cate g ory of g overnme ntal functions. The leg islature h as u n eq uivocally expressed its intent that when a municipality opera tes and maintains a public utilit y , it is eng ag ing in a proprieta ry function. Tex. Civ. P ra c. & R em . Code § 101.0215(b)( 1). Appellee s’ tort claims are based on complaints about the manner in which the City opera ted and maintained the public utilit y ’s overhe ad elec tric distribution lines, activities that fall square ly within an enumer ated proprieta ry function. We

are unpersua ded by the C ity ’s arg um en t t h at t h e opera tion and maintenance of the publ ic ut ility ’s
power lines are not p roprieta ry functions beca

use they involve the “desig n and opera tion of
structure s, machines, proce sses, and sy stems, ” wh i ch the City char acte rizes as an “eng ineer ing function.” V irtually

ever y aspec t of the opera tion a

nd maintenanc e of a public utilit y involves the desig n or opera tion of structure s, machines, proce sses, or sy stems. Acc epting the City ’s arg ument would contra vene the leg islature’s classifica tion of a municipality ’s opera tion a nd maintenanc e of a publi c uti lity as a proprieta ry function, one that it “may , in its d i s cr eti on, perf orm in the i ntere st of the inhabitants of the municipality .” Id. The deter mination of whether an activity is proprieta ry
or g overnme ntal must include considera tion of the context withi n which the c onduct occ urre d. I n the present case , the context of the City ’s ac tiviti es for ming the ba sis of appellee s’ claims wa s the
opera tion and maintenanc e of a public utilit y . Whil e opera ting and maintaining a public utilit y

cer tainly involves aspec ts of eng ineer ing, we do not believe that it involves the ty pe of “eng ineer ing fu n ct ions” that are “enjoined on a municipality by law and [] g iven it by the state as par t o f t h e

18state’ s sovere ignty , to be exercised by the municipality in the interest of the g ener al public.”

Id. § 101.0215(a)

.

Acc ording ly , beca

use appellee s’ t o rt claims arise out of the City ’s perf ormanc e of proprieta ry functions, t hey are not barr ed by g overnme ntal immu n i ty

. Tooke , 197 S.W .3d at 343. The City ’s sec ond issue is overrule d.

Aust in C ity Chart er’s Notice

Requirem ent
I n its third issue, t h e C ity contends the trial court lacks subject-matter jurisdiction

o v er appellee s’ common-law claims beca use none of the appellee s complied with cer tain n o t i ce

re q u i reme nts imposed by the Austin City Charter

. I n support of its arg ument, the City rel i es o n Gover nment Code section 311.034, which provides that “[s] tatutory prer equisites to a suit, including the provisi on of not ice, are jurisdictional require ments in all suits ag ainst a gove rn m en t al entity .”
See Tex. Gov’t Code § 311.034. The City ’s relianc e on section 31 1 .034 is misplaced, howeve r, beca use the notice provision at issue in the prese nt case is contained in the Austin City Charter rathe r than in a statute and thus is not a statutory prer equisite to suit. Moreove r, the lang uag e of the char ter itself does not purport to pr ovide immunit y from suit

. The c harte r states that “ [b] efor e the City of Austin shall be liable for damages ” the injured party must, within 45 day s of the event causing the injury or damag e, n o t i fy t h e city council or city manag er of when, where , and how the damage or injury occur

red. I t further provides that failure to do so “shall exonerate, excuse and exempt the city from any liabili ty whatsoeve r.” See Austin City Charter , art. XI I , § 3 (empha ses added)

. By its own terms, the notice require ment rela tes to immunit y from liabili ty , which only bar’ s enfor ceme nt of a judgme nt ag ainst the C ity , as opposed to immunit y from suit , which is a jurisdi ctional bar ag ainst

19suing the City at all

. S ee Ca t a l i na Dev ., Inc. v. County of El Paso , 121 S.W .3d 704, 705 (Tex. 2003); W ichita Falls State Hosp. v. T aylor , 106 S.W .3d 692, 696 (Tex. 2003). Fina lly , the notice provision in question does not require that notice be g iven before suit is filed but only that it be g iven within 45 day s of the event causing the injury

. Thus, it is not a “pre requisite” to filing a suit ag ainst the City

. See Prairie View A & M Univ. v. Chatha , 381 S.W .3d 500, 512 (Tex. 2012) (“[T]he term ‘statutory prer equisite’ ref ers to statutory provisions that are mandatory and must be acc omplished prior to filing suit.”).

Other than the ref

ere nce to Gover

nment Code section 311.034, the City provides no authority for the proposition that this notice provision is a jurisdictional prer equisite to suit. Whil e the case s cited in the City ’s brief support the notion that a city may make g iving notice of an injury mandatory and a condition prec edent to rec over i n g d am age s ag ainst it, none of them states that failure to comply with notice-of -injury require ments such as the one at issue here divests a trial court of subject-matter jurisdiction. See, e.g. , City of Houston v. Torres , 621 S.W .2d 588, 590 (Tex. 1981) (o b s er v i ng that city ’s notice-of -cla im require ments are mandatory and are condition prec edent to maintaining suit for damag es ag ainst city ); Artco-Be ll Corp. v. City of Temple , 616 S.W .2d 190, 194 (Tex. 1981) (city can leg ally enac t notice requirements pursuant to statutory authorit y gi ven them by leg islature). The City may not, of course , confe r g overnme ntal immunit y on i tself throug h its char ter. While failure to comply with the char

ter’s notice require ment might ultimately shield the City from liability , it does not cre ate a jurisdictional ba r to a ppellees’ tort claims. We overr ule the City ’s third issue. 6

Be cause our appellate jurisdiction in this interlocutory appea l is limit ed to issues of subject- 6 matter jurisdiction, we do not have jurisdiction to consider, and there fore do not addre ss, the parties’ 20CONCLUSION Having conclude d that appellee s failed to plead valid taking s claims ag ainst the City ,

we re v erse the trial court’s denial of the City ’s Rule 91a motion as to the inverse- condemna t i o n claims asser

ted by the I nsurer s and the Homeowne rs. Moreove r, based on appellee s’ cu rr ent pleading s, we cannot conce ive of a set of plausible fac tual alleg ations that would demonstrate that the fi re an d d amage wer e a substantially cer tain result of the manner in which the City alleg edly maintained its overhe ad distribution lines; appellee s have made no sug g estion as to how that jurisdictional defe ct could be cure d. Consequently , we do not believe t hat appellee s can

cure these pleading insufficienc ies by further amendment. See Texas A & M Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 840 (Tex. 2007) (plea der must be g iven opportunity to amend in response to plea
to jurisdiction only if it is possible to cure pleading defe ct). I ndeed, appellees alre ady had an opportunity

to, and did, amend their pleading s in response to the C ity ’s original R ule 91a moti on. They had a second opportunity to amend their pleading s in response to the City ’s amende d Rule 91a motion but chose not to. Counsel for appellees ex p re s s ly stated during the hear ing on the m otion that they wer e standing on their plea dings. U nder these circ umstances, we deem it unne cessa ry to
g rant appellee s a further opportunity t o am en d. See Save Our Springs Alliance v. City of Austin , 149 S.W .3d 674, 686 (Tex. App.—Austin 2004, no pet.) (no obli gat i o n t o p rovide further opportunity to amend pleading s when plaintiffs twic e a me n d e d their petition afte r plea to jurisdiction

arg uments rela ted to the sufficie ncy of the notice g iven to the City by the various claimants, nor whether the Austin City Ch ar t er ’s notice require ment violates the Open Courts provision of the Texas Constit ution. See Texas Dep’ t of Transp. v. City of Sunset Valley , 8 S.W

. 3 d 7 2 7, 730 n.3 (Tex. App.—Austin 1999, no pet.) (in interlocutory appea l from plea to jurisdiction, court considers only jurisdictional arg uments). 21was filed). Acc ording ly , we rende r judgme nt dismi s s i n g ap p ellees’ taking s claims for lack of

subject-matter

jurisdiction. Having further

conclude d that appellee s’ common-lawtort claims are based on the City ’s perf

ormanc e of a proprieta

ry function, for which it does not have g overnme ntal immunit y , and that compliance with the notice-of -injury provision in the Austin City Charter does not implicate the trial court’s subject-matt er j u risdiction, we affirm the trial court’s order to the ex tent it denies the City ’s motion to dis miss thos e cla ims for lack of subject-matter

jurisdiction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose
Affir med in Part, Rever sed and D ismiss ed for Want of J urisdiction in Part Filed: May

16, 2014

22