1 Former Chi ef Justice Phil Johnson was on the panel that h eard oral ar gument. He did not participate in the decision. Tex. R. App. P. 41.1(b). NO. 07-04-0520-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A NOVEMBER 2, 2005

______________________________ CITY OF BORGER, APPELLANT

V. SOUTHERN IN SURANCE C OMPANY A/S/O MAXIN E STULLER, APPELLEE

_________________________________ FROM THE 84 TH DISTRIC T COURT O F HUTCHINS ON COUNTY; NO. 35,437; HON ORABLE WILLIAM SMITH, JUDG E

_______________________________ Before REAVIS and CAMPBELL, JJ. 1
ON MOTION FOR REHEAR ING
The motion for rehear ing filed by appellant Ci ty of Borger is overruled. Our opinion of August 26, 2005 in this appeal is wi thdrawn, and the follo wing i s substituted as the opinion of the Cour

t.2

The City of Bor

ger brings t his interl ocutory appea l from the denial of its plea to the jurisdict ion on the basis of sovereign immuni ty in a su it for property damage result ing from demoli tion of a buil ding. We will a ffirm.
In August 1999, t he City of Borger bui lding official determined that a building located
on Main Street in Borger fell below the city’s building code in sever al respects and was beyond repair. In July 2000, an architect issued his opinion t he building was beyond repair and that it cou ld be dem olish ed wit hou t dam aging the a djac ent b uild ing. T he Cit y, a homerule municipality , made a decision to demolish the building. It h ired Howell Sand Comp any, Inc. (HSC I) to pe rform the demoliti on and notified the ow ner of the adjacent building, Maxine Stu ller, of the pr oposed demolition.
HSCI demolished the bui lding in early May 2001. The City’ s primary involvement in the demolition w

as removal of debris and delivering dirt to fill a basement. All other work
was performed by H SCI. Stulle r asserted the demolition caused damage to her bu ilding. Southern Insurance Company paid a claim for that da mage and broug ht suit agai nst the City as subrogee of Stuller. Sout hern’s liv e petition all eges the Ci ty owned the demolished building, and alleges the demolition w as a proprietary function of the City.
The City answered and filed special exceptio ns, arguin g Southe rn faile d to alle ge f acts demonstrating the court’s jurisdict ion and failed to pl ead facts supporti ng waiv er o f
sov ereign immunity, and a plea to the j urisdicti on reasserti ng its cl aim of soverei g n imm unit y. The City now appeals from the tria l court’s den ial of that plea. See Tex. Civ. Prac. & Rem. C ode Ann. § 51.014(a) (5) (Vernon Supp. 2005).3

The City presents six arguments in supportof its single i ssue challeng ing denial of its plea t o the juri sdiction. The fir st and fifth arguments

discuss w hether the Cit y was performing a gover nmental function. The remai ning arg uments concern w aiver of sovereig n immunity and Southern’s tak ing clai m under the TexasConstitutio n.
Aplaintiff bears th e burden to all ege facts affirmatively demonstr ating the trial court’ s jur isdiction. Texas Ass'n of Business v . Texas Air

Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993 ). W hen cons ider ing whe ther the p lain tiff ha s don e so, we are to construe the pleadings liberally in the plaintiff’s favor. Texas Dep't of Parks and Wildl ife v. Mir anda , 133 S.W .3d 2 17, 2 26 (T ex. 2004)

. Courts deciding pl eas to the juri sdiction ar e not requir

ed to look solely

to the pleadings but may consider evidence and mu st do so when necessary to resolve the jurisdi ctional iss ues raised. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). When jurisdictional factsare undisputed atrial cour t’s juris di ctio n is a question of law

. Miranda , 133 S.W.3d at 226.
As political s ubdiv isions of the state, municipali ties enjoy governmental immunity when exercis ing governmental functions. City of Tyler v. Likes , 962 S.W.2d 489, 501 ( Tex. 1997); City of San An tonio v. Butler , 131 S.W .3d 1 70, 1 77-7 8 (Te x. App.– San Antonio 2004, pet. filed); City o f Lub bock v. Ad ams , 149 S.W.3d 820, 823 (Tex.Ap p.–Ama rillo 2004, pet. filed). Since 1987 the l egislatur e has delineated those governmental functions affording immunity and the proprietar y functions of

a municipality for which it do es no t have imm unit y. See Tex. C iv. Prac. & Rem. Code Ann. § 101.0215 (Vernon 2005). Subsection (a) of S ecti on 10 1.02 15 de fin es gove r nmental functions as including those “enjoined on2 If the City ow ned the building , it apparentl y had not alw ays done so. The record contains a letter from Mullenix to Stuller referring to the building as the Johnson Bake ry Buil ding. That letter and Mullenix ’s affidavit al so refer to the pr esence of an oven in th e building. 4 a municipality by law” to be exercised in the interest of the general public, and lists thirty-six specific functions as g overnmental. Id. Subsection (b) descr ibes propri etary functio ns as “those functi ons tha t a mu nicipality may, in it

s discreti on, perform in the i nterest of the inhabitantsof the municipality,” listing examples of pub lic utilities, amuseme nts, and abnormally dangerous or ultrahazar

dous activ ities. Id.
The City pr

esented ev idence in support of it s plea to the j urisdicti on, and relies primarilyon the affidavit of i ts building official Larry M ullenix, which s tates that he ins pected the building and determined it was in a deterior ated condition and fail ed to comply with the current building code. The affidavit further sta tes , “As a res ult of my opini on that the Building was unsafe and could not be repair ed to meet buildi ng code standards, the City chose to demolish the Bu ilding.”
Southern’s allegatio n thatthe City owned the demol ished buildi ng is suppor ted by
an affidavit from Stul ler. The Cit y has not co ntradicted the contention. 2 Its evidence does notaddr ess the owne rsh ip o f t he demolishe d building. Mullenix’s affidavit refers to it simplyas “the building located at 325 N. Main. ” The building apparently was unocc upied, and its function i s not addressed in the recor d.
The City contends the undisputed ev idence establi shes its demoli tion of the building
was the e x ercise of a g overnmental funct ion. Southern ar gues the ev idence shows the3 The facts here are thu s to be distinguished from tho se presented in City of Pam pa v. Pampa Prope rties Cor p. , No. 07-00-04 07-CV, 2001 WL 55623 (Tex.App.–A marill o January21, 2001, no wr it). There, the plaint iff’s damages aros e from street cons truction, a listed governmental funct ion. See Tex. Civ . Prac. & Rem. Code Ann. §101.0215(a)(3)(Vernon 2005).

4 The present state of the record, for i nstance, does not permit cons ideration of how the City’ s decision to demolish an unsafe bui lding that could not be repai red to meeting building code standards diff ered from a similar decision by any other premises owner, if indeed the City

was the pr

emises owner

in this cas e. 5 City was engaged in a proprietar y function. We disagree with bot h positions, concluding the record developed thus far does not permit r esoluti on as a matter of law of the jurisdict ional issues raised, and so aff irm the trial court’s deni al o f the City’ s plea to the jurisdict ion.
The City ar

gues that the s upervisi on of the construct ion, maintenance and rep air of buildin gs comes with in the cit y’s police p ower delega ted by the state, c iting City of Ty ler
v. Ingram , 164 S.W.2d 516, 519 (Tex. 1942). The argument istoo broad. Ingram dealt with temporary bleachers erected in a city park by a pri vate party for an event s ponsored bytha t party. Id . at 519. Ingram does not support

a contention that

every such actio n taken by a munici pality r elating to abuilding is governmental conduct, 3 regardles s of the building’ s ownersh ip or use.
The City al so arguesthe evidence demonstrates that its demolition of the bui lding constituted the exerci se of the functions of healt h and sanitation service s or building codes and inspe ct ions. Tex. C iv. Prac . & Rem. Code Ann. §§ 101.0215(a)( 2), (28) (Vernon 2 005). On this record, we cannot agree that the City ’s demolition of the b uildin g reasonably can be characterized as exercising either of those f unctions. 45 Again, Southern’s eviden ce the City owned the demol ished buildi ng suggests that any nuisance maintai ned there may ha ve been maintai ned by the C ity. The City does not cite us to authorit

y holding that abatement by a cit y of a nuis ance also main tain ed by a city is a governmental function as a matter of law

.

6 The City r

efers also to the statutory authority given home- rule municipal ities t o define and prohibit n uisances, and toenforce ordinance s necessary to the prevention and abatementof nuis ances, as showing it was perfo rming functions e njoi ned on it by law, citing Tex. Loc. Gov ’t Code Ann. §§ 2 17.041-.042 (Vernon 2002). We si milarly find the evidence presented thus far i n sufficient to de monstrate that the City’s actions were encompassed within a governmental f unction relating to abateme nt of nuisances. 5 By Section 101.0 215 the leg isl atur e hasdefi ned a lmos t al l th e func tion s of a municipality

as governmental. Edinburg Hosp. Auth. v. Tre vino , 941 S.W.2d 76, 83 (Tex. 1997) (Hecht, J. , concurri ng). See also Butler , 131 S.W.3d at 177-78; Mitchell v. City of Dallas , 855 S.W.2d 741, 744 (Tex.App.– Dallas 1993 ), af f’d , 870 S.W.2d 21 (Tex. 1994) (rejecting narrow application of listed governmental funct ions). Further development of the f acts may demonstrate that the damages claimed arise from a governmental functio n o f the City. See Spindletop M HMR v. D oe , 54 S .W .3d 8 93, 8 95-9 6 (Te x. App.–B eaumont 2001 pet. denied)(pointing out state agency could reassert immunity defense ifevidence later demonstrated that under “specific facts” ofcase, sovereign immunity was not waived). See also Mir

anda , 133 S.W .3d at 227-28 (dis c ussing timing of jurisdictional determinat ion). Based on the record befor e us, though, w e find the trial court did not err in deny ing the6 The City’ s plea to the j urisdicti on dealt also w ith the taking claim Southern alleged

under the Texas Constitutio n based on the damage to Stuller’s property. Tex. Const. art I, § 17; Steele v. Ci

ty of Houston , 603 S.W.2d 786 (Tex. 1980). Our affirmance of the trial court’s d enial of the City’s plea to the jurisdiction with respect to Southern’s negligence claim makes it unneces sary for usto address the trial court’s jurisdiction ov er the taking claim , and we ex press no opini on on the vali dity of the pl ea to the juris diction as addr essed to that claim. 7 City’s plea to the jurisdiction. 6 We overrule the City ’s sole is sue, a ffirm the trial court’s order and remand t he case to the trial court for further proceedi ngs.
James T. Campbell Justice