L. W. Parker v. City of Austin, Ron D. Mullen, Bruce M. Todd, Robert Barnstone, Carlton Lee Cooke, George A. Humphrey, Frank C. Cooksey, Sally S. Shipman, Mark N. Rose, Charles E. Urdy, Tracy H. Watson, Jorge Carrasco, and Forrest S. Carl-Mitchell

• Court: Court of Appeals of Texas
• Decided: March 4, 1999
• Docket: 03-98-00254-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00254-CV L. W. Parker, Appellant

v.

City of Austin, Ron D. Mullen, Bruce M. Todd, Robert Barnstone, Carlton Lee Cooke,

George A. Humphrey, Frank C. Cooksey, Sally S. Shipman, Mark N. Rose,

Charles E. Urdy, Tracy H. Watson, Jorge Carrasco,

and Forrest S. Carl-Mitchell, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 94-08561, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

L. W. Parker sued the City of Austin (the "City") and several of its employees and officials ⁽¹⁾ (collectively "appellees"), alleging injury to real property and asserting claims for negligence, gross negligence, taking of property in violation of the United States and Texas Constitutions, and violations of 42 U.S.C. section 1983. Appellees filed a motion for summary judgment contending that Parker did not establish a valid cause of action and raising the affirmative defenses of limitations, governmental immunity, and qualified immunity. The trial court granted appellees' motion for summary judgment. We will affirm the summary judgment order.

THE CONTROVERSY

The issues raised by Parker revolve around whether the Pamela Heights subdivision in which Parker owned real property was located within the extraterritorial jurisdiction of the City of Austin. ⁽²⁾ The Texas Legislature created the concept of extraterritorial jurisdiction ("ETJ") to promote and protect the general health, safety, and welfare of persons residing in and adjacent to municipalities. See Tex. Loc. Gov't Code Ann. §§ 42.001-.904 (West 1988 & Supp. 1999); see also City of Austin v. City of Cedar Park, 953 S.W.2d 424, 426 (Tex. App.--Austin 1997, no writ); Village of Creedmoor v. Frost Nat'l Bank, 808 S.W.2d 617, 618 (Tex. App.--Austin 1991, writ denied). Thus, a municipality is granted as its ETJ a designated amount of unincorporated area adjacent and contiguous to the municipality's corporate boundaries. Tex. Loc. Gov't Code Ann. § 42.021 (West 1988). The area designated as a municipality's ETJ is determined by the municipality's population. The statutorily defined ETJ ranges from one-half mile for municipalities with fewer than 5,000 inhabitants to five miles for municipalities with 100,000 or more inhabitants. Id.

The owner of a subdivided tract of land located within the ETJ of a municipality must prepare a plat of the subdivision. See Tex. Loc. Gov't Code Ann. § 212.004 (West 1988). The plat must adequately describe the subdivision and must be filed and recorded with the county clerk of the county in which the tract is located. Id. A plat may not be filed with the county clerk without the approval of both the municipality and the county. Id. § 242.001(b). Subdivisions receiving plat approval qualify as "legal subdivisions" and are eligible to receive public utilities. Id. § 212.012.

Subdivisions located in an unincorporated area outside the ETJ of a municipality may achieve legal subdivision status simply by filing a plat with the county clerk of the county in which the tract is located after receiving plat approval from the commissioners court of the county. Id. §§ 232.001, .002.; see also Projects Am. Corp. v. Hilliard, 711 S.W.2d 386, 388-89 (Tex. App.--Beaumont 1986, no writ) (stating that authority of the commissioners court to approve plats is not discretionary). A municipality may not regulate subdivisions located outside its ETJ or approve the filing of plats. Tex. Loc. Gov't Code Ann. § 242.001(d) (West 1988). Because a county's power to regulate subdivisions is less broad than that of a municipality, a subdivision lying outside a municipality's ETJ may receive plat approval more readily than a subdivision located within the ETJ. See Elgin Bank of Tex. v. Travis County, 906 S.W.2d 120, 121-23 (Tex. App.--Austin 1995, writ denied).

The Pamela Heights subdivision plat was filed in the Travis County Plat Records on August 25, 1960. At that time, the City of Austin Planning Department determined that Pamela Heights was less than five miles from Austin city limits and therefore fell within the City's five-mile ETJ. Because the plat did not comply with city development ordinances, the City declared Pamela Heights to be an illegal subdivision. See Tex. Loc. Gov't Code Ann. §§ 212.004-.011 (West 1988). Pursuant to this determination, the City was not authorized to connect any public utilities, including water, sewers, electricity, and gas, for the use of owners or purchasers of any part of the subdivision. Id. § 212.012.

Parker began purchasing lots in Pamela Heights in June 1983. His initial plan was to build three rental houses on his property. Because of the illegal subdivision status of Pamela Heights, the City could not supply water to Parker's lots. Parker applied for water service with the Marsha Water Corporation ("Marsha"), a water supply corporation holding a Certificate of Convenience and Necessity which gave it the right to provide water to Pamela Heights. See Tex. Water Code Ann. § 13.242 (West Supp. 1999). Marsha, however, denied Parker's request for water service, explaining that Marsha did not have adequate capacity to provide water to any additional lots in Pamela Heights. Although he knew at this point that neither the City nor Marsha would supply water to additional lots in Pamela Heights, Parker testified that he decided "if I couldn't get water and I could buy the lots as cheap as they were, that I'd buy as many as I could." By late February 1984, Parker had purchased twenty-nine lots in the subdivision.

Sometime in March or April 1984, Parker discovered that the City's determination in 1960 that Pamela Heights was within the City's ETJ was erroneous. Parker studied a map of the 1960 city limits and a more recent map, along with highway mile markers, and determined that

The city limits of the City of Austin in 1960 was Rundberg at I.H. 35, and Rutland at Burnet Road. According to a scale map of the City of Austin, Rutland and Burnet Road was more than 5.5 miles from Pamela Heights. In addition, the state mile marker #242 is .3 of a mile North of Rundberg and the #248 mile marker is south of Pamela Heights, which places Pamela Heights 6.3 miles north of the city limits. The Extra Territorial Jurisdiction of the City of Austin in 1960 extended 5 miles beyond the city limits. Thus, according to the scale map of the City of Austin, Pamela Heights was at least .5 miles beyond the Extra Territorial Jurisdiction of the City of Austin when it was platted in 1960. ⁽³⁾

Had a correct determination of Pamela Heights' location in relation to the City's ETJ been made in 1960, the subdivision could have qualified as a legal subdivision with all corresponding access to public utilities by virtue of its plat filing in the Travis County Plat Records.

After learning of the City's erroneous ETJ determination, Parker continued to purchase lots in Pamela Heights. He acquired sixteen lots in the remaining months of 1984, five lots in 1985, and four lots in 1986. In 1985, in an effort to obtain utility service for his undeveloped lots, Parker began meeting with city employees and officials to persuade the City to recognize Pamela Heights as a legal subdivision. The City reiterated its position that Pamela Heights was an illegal subdivision that did not qualify for city utility service. The City suggested that Parker replat the subdivision to conform to city standards. See Tex. Loc. Gov't Code Ann. §§ 212.004, .010 (West 1988). If Pamela Heights did become legally subdivided, the City suggested that Parker could: (1) request that the City supply his lots with water; (2) request that the City supply Marsha with additional capacity that could be used to supply his lots with water; or (3) petition for annexation to the City.

Instead of following accepted subdivision procedures, Parker lobbied the city council, the mayor's office, and other city departments over the course of the next several years to change the erroneous ETJ designation. Parker's inability to provide water service to his properties prevented him from selling the lots, and he eventually fell behind on his obligation to pay the notes secured by the lots.

In February 1993, the City realized its error and recognized, for the first time, that Pamela Heights was not within the City's ETJ on August 25, 1960, and that Pamela Heights was, therefore, a legal subdivision. On February 22, 1993, the City sent Parker a letter verifying that

Current information indicates that Pamela Heights was not within the E.T.J. and subject to the Subdivision Ordinance until September 23, 1965 with the annexation of the Walnut Creek Metropolitan Park. Therefore, the Pamela Heights Subdivision is recognized as a legal subdivision since it was platted through the County in 1960 prior to the City of Austin's Subdivision Authority on September 23, 1965.

The notification came too late to save Parker's lots. His efforts to raise capital to pay his debts failed, and Parker lost his lots to foreclosure in late 1993 and early 1994.

Parker argues that each time he met with city employees and officials to discuss the denial of legal subdivision status to Pamela Heights, the individual appellees, although aware of the problem, simply ignored him, declined to act, or acted and came to the unfounded and erroneous conclusion that Parker's lots lay within an illegal subdivision. Parker contends that by failing to act on their knowledge of the legality or potential legality of Pamela Heights, the individual appellees failed to fulfill the legal duties they assumed by taking the oath of office for city positions, including the duty "not to deny by act, or omission, the benefits of legal status, services, permits and authorizations to which owners and residents of Pamela Heights were entitled."

Parker contends that the breach of this duty resulted in the continued classification of Pamela Heights as an illegal subdivision, thwarting its development through the withholding of utility services. As a result, Parker argues that he was not able to sell, develop, or otherwise utilize his Pamela Heights lots and eventually lost the lots to foreclosure. Parker claims that because the City did not discover and correct the error until February 1993, four former city mayors, six former city councilmembers, a former city manager, and a director for the city planning department are liable to him for damages caused by their negligence, gross negligence, taking of property without just compensation, and violations of 42 U.S.C. section 1983.

Appellees argue that Parker cannot maintain a cause of action for either negligence or gross negligence because: (1) the applicable limitations period had run; (2) no legally enforceable duty arises by virtue of an oath taken by a city councilmember; (3) Parker cannot successfully assert negligence claims under the Texas Tort Claims Act; and (4) the City and the individual appellees are shielded from liability by governmental immunity and qualified immunity, respectively. Furthermore, appellees contend that Parker did not establish the elements necessary to maintain an action for a taking under the Texas Constitution or the United States Constitution. Finally, appellees argue that Parker's 42 U.S.C. section 1983 claim is not ripe because state remedies have not been exhausted.

DISCUSSION AND HOLDINGS

In granting appellees' motion for summary judgment, the trial court did not specify the ground on which it based its summary judgment order. When a trial court does not specify the ground on which it granted summary judgment, the judgment will be affirmed on any meritorious theory asserted in the motion and found in the record that proves conclusively that the nonmovant cannot prevail. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We review the record under familiar precepts: (1) a movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed issue of material fact precluding summary judgment, matters in the record that favor the nonmovant will be taken as true; and (3) every reasonable inference from the record must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is therefore entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

Assuming the evidence of Parker's allegations as true, the most we can infer from the summary judgment record is that the City, through incompetent acts of its employees and officials, made a mistake by failing to reclassify Pamela Heights as an legal subdivision. We cannot infer that the individual appellees intended to injure either Parker individually or his interest in the Pamela Heights subdivision.

The summary judgment record is replete with letters and memos concerning the legal status of Pamela Heights. The extensive correspondence memorializes and describes meetings between: (1) Parker and city representatives; (2) other concerned Pamela Heights landowners and city representatives; (3) representatives of the Marsha Water Corporation and city representatives; and (4) city employees and city officials. The record indicates that the individual appellees believed that because Pamela Heights fell within the City's ETJ and had not been subdivided in compliance with the city subdivision regulations, it was properly classified as an illegal subdivision. City employees and officials suggested several solutions, including: (1) seeking legal status for Pamela Heights through accepted subdivision procedures; (2) petitioning for annexation to the City; and (3) persuading the Marsha Water Corporation to request a wholesale supply agreement from the City, which the City would then consider on its merits. ⁽⁴⁾ Generally, Parker determined that these alternatives were cost prohibitive. While the City contends that it also suggested to Parker that he obtain a surveyor or an engineer to perform an on-the-ground measurement, Parker denies that this alternative was ever communicated to him. He did, in fact, employ an engineer in early 1993 which led to the change in subdivision status in February 1993. These suggestions indicate an effort on the part of city employees and officials to resolve the problem.

"Gross negligence includes two elements: (1) viewed objectively from the actor's standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others." Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). The summary judgment proof shows that the appellees considered Parker's problem and made an effort to resolve the problem; it cannot be said that the appellees knew of the likelihood of serious injury to Parker and, by their acts or omissions, proceeded with conscious indifference. Id.

We infer from this evidence that the appellees' intent was not to injure Parker's real property but rather to minimize the number of substandard subdivisions built around Austin and to comply with the State prohibition against serving illegal subdivisions. Because we find the summary judgment record supports at most a claim of ineptitude ⁽⁵⁾ on the part of the City and the individual appellees, Parker cannot maintain a cause of action for gross negligence.

Moreover, the summary judgment proof conclusively negates essential elements of Parker's takings claim under both article I, section 17 of the Texas Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. Takings can be classified as either physical or regulatory. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). Physical takings occur when the government authorizes an unwarranted physical occupation of an individual's property. Id. (citing Yee v. City of Escondido, 503 U.S. 519, 522 (1992)). It is uncontested that there was no physical occupancy of any of Parker's property by the City. Rather, Parker can only allege that the City's decision regarding the legality of the Pamela Heights subdivision constituted a regulatory taking.

The summary judgment record establishes that Parker did not suffer a total deprivation of "all economically viable use of his land"; thus, he cannot recover under the theory of regulatory taking. ⁽⁶⁾ See Mayhew, 964 S.W.2d at 933; Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-17 (1992). Parker admits that his lots in Pamela Heights had value during the time he owned them; he filed suit only because of his belief that his lots would have been worth more had the City provided water. Parker's takings claim also fails because the City did not intentionally perform acts that resulted in a "taking of property for public use." See Fireman's Ins. Co. v. Board of Regents, 909 S.W.2d 540, 543 (Tex. App.--Austin 1995, writ denied) (citing Green Int'l, Inc. v. State, 877 S.W.2d 428, 434 (Tex. App.--Austin 1994, writ dism'd by agr.)). Mere negligence is not a compensable taking. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980).

Parker's only remaining potential cause of action is for negligence. The determination of whether Parker may maintain a negligence claim ⁽⁷⁾ requires a review of the pleadings. Parker filed his original petition on July 13, 1994. On December 19, 1994, Parker filed his first amended original petition. Appellees filed their first amended special exceptions on January 13, 1995 and their second amended special exceptions on January 17, 1995. The trial court held a hearing on appellees' special exceptions on January 26, 1995. The court concluded that the special exceptions should be sustained and ordered Parker to amend his pleadings by June 6, 1995. In particular, the court stated that, "If [Parker] contends that the individual Defendants breached a legal duty to him to 'act,' . . . [Parker] is hereby ordered to plead the basis of such alleged duty."

Accordingly, Parker filed his second amended petition on June 6, 1995. In his second amended petition, Parker alleged

The Defendants breached legal duties, owed to Parker in that they failed to act on their knowledge of the legality or potential legality of Pamela Heights, with an awareness of the potential damage to Parker. In particular, the Defendants failed to fulfill the duty they assumed by taking the oath of office for City positions . . . . They each had a duty to [Parker] . . . not to deny by act or omission, the benefits of legal status, services, permits and authorizations to which owners and residents of Pamela Heights were entitled. The Defendants' failure to fulfill their duty resulted in the continued classification of Pamela Heights as an illegal subdivision.

(Emphasis added.) In a section of his second amended petition entitled "Negligence of an Employee of the City," Parker incorporated the language quoted above and made clear that he was suing appellees under the Texas Tort Claims Act based on negligence in the performance of their governmental functions. ⁽⁸⁾

On January 30, 1998, four days before the hearing on appellees' motion for summary judgment, Parker filed a third amended petition containing a new section entitled "Common Law Claims Against Defendants." ⁽⁹⁾ In this section, Parker alleged for the first time that the individual defendants committed torts "in the performance of a proprietary function" ⁽¹⁰⁾ as opposed to a governmental function. Parker argued that "[t]he duties that Defendants failed to carry out were ministerial, non-discretionary duties, in the nature of locating and properly measuring distances on Defendants' own maps. These duties could have been completed in a manner of minutes." Appellees filed a motion to strike and the trial court granted appellees' motion on March 5, 1998.

In his second point of error, Parker argues that the trial court should have granted leave to file the third amended petition because appellees did not show that the filing would operate as a surprise. In their motion to strike the amended pleading, appellees contended that because Parker's third amended petition alleged, for the first time, that the individual defendants committed torts in the performance of a proprietary function as opposed to a governmental function, the amendment improperly asserted a new claim based on common law negligence. They argued that the uncontroverted evidence before the court established that the city functions related to Parker's claims were zoning, planning, plat approval, and engineering functions, which were clearly governmental functions under the Tort Claims Act. Appellees argued that allowing Parker to amend his petition in this manner would operate as an unreasonable surprise.

Rule 63 of the Texas Rules of Civil Procedure provides

Parties may amend their pleadings . . . provided, that any amendment offered for filing within seven days of the trial . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex. R. Civ. P. 63. A summary judgment proceeding is a trial within the meaning of Rule 63. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); Goswani v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988). Accordingly, pleading amendments sought within seven days of a summary judgment proceeding are to be granted unless there has been a showing of surprise to the opposite party. Goswani, 751 S.W.2d at 490. This showing may be based on the trial court's conclusion that the amendment on its face is calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial. See Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex. 1992) (citing Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990)); see also Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980). The trial court has broad discretion to allow or deny trial amendments, and the court's ruling will not be disturbed unless the complaining party shows an abuse of discretion. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 634-35 (Tex. 1986); Hardin, 597 S.W.2d at 349.

Although the trial court did not state the basis of its denial of the amendment, the court could have reasonably concluded that the amendment constituted a substantive, rather than a procedural change, which altered the nature of the suit and resulted in surprise and prejudice. Chapin, 844 S.W.2d at 665. For us to disturb the court's ruling, Parker, as the complaining party, has the burden to show that the trial court clearly abused its discretion in denying the amendment. Under this record, he has not done so. Parker's second point of error is overruled.

Because Parker's third amended petition was properly struck, the basis for any duty owed to Parker by the individual appellees must be contained in Parker's second amended petition. In that pleading, Parker based his negligence claim on sections 101.0215 and 101.025 of the Texas Tort Claims Act. Section 101.0215 states

A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that are enjoined on a municipality by law and are given to it by the state as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public. ⁽¹¹⁾

Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (West 1997).

The City contends that it is shielded from liability even if the acts of its employees and officials were negligent because its employees and officials were entitled to qualified immunity. ⁽¹²⁾ Qualified immunity is an affirmative defense. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (citing Perry v. Texas A & I Univ., 737 S.W.2d 106, 110 (Tex. App.--Corpus Christi 1987, writ ref'd n.r.e.)). Thus, the burden is on the appellees to establish all elements of the defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). Governmental employees are entitled to qualified immunity from suit arising from the performance of their (1) discretionary acts (2) in good faith as long as they are (3) acting within the scope of their authority. Chambers, 883 S.W.2d at 653. If the employee is protected from liability under the doctrine of qualified immunity, the governmental entity's sovereign immunity remains intact. City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993).

If an action involves personal deliberation, decision, and judgment, it is discretionary; actions which require obedience to orders or the performance of a duty to which the actor has no choice, are ministerial. Chambers, 883 S.W.2d at 654 (citing Wyse v. Department of Pub. Safety, 733 S.W.2d 224, 227 (Tex. App.--Waco 1986, writ ref'd n.r.e.)). The summary judgment record establishes that the individual appellees had no duty to determine whether a subdivision was within the City's ETJ; ⁽¹³⁾ moreover, the individual appellees did deliberate the status of Pamela Heights and came to the conclusion, based on the advice of the city legal department, that the City had no obligation to serve Pamela Heights. We hold that the acts of the individual appellees were discretionary.

Furthermore, because a reasonably prudent city employee or official could have believed that acting in such a manner was lawful in light of the clearly established law concerning legal subdivisions and the information possessed at the time the conduct occurred, we hold that the individual appellees acted in good faith. See Chambers, 883 S.W.2d at 656. Parker has not controverted appellees' proof regarding good faith; he has not shown that "no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." Id. at 657.

Finally, we hold that the individual appellees, by "listening to the concerns, questions, and complaints" of their constituency and by "following up on those matters by asking the city manager to request the appropriate city department to investigate and to prepare a response to the issues raised," were acting within the scope of their authority. ⁽¹⁴⁾ Accordingly, the individual appellees are entitled to qualified immunity from a suit arising from their evaluation of the legality of the Pamela Heights subdivision. The sovereign immunity of the City with regard to Parker's allegations remains intact and shields it from liability as well. Kilburn, 849 S.W.2d at 812. Because on these facts all appellees are immune from a suit for negligence, Parker's negligence claim fails.

The summary judgment proof of the appellees has successfully negated at least one essential element of Parker's causes of action for gross negligence, taking of property without just compensation, and violations of 42 U.S.C. section 1983. Furthermore, appellees conclusively established all of the elements of their affirmative defenses to Parker's negligence claim. We overrule Parker's first point of error.

The judgment of the trial court is affirmed.

Jan Patterson, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: March 4, 1999

Do Not Publish

1. At the time suit was filed, Bruce Todd was the Mayor of Austin and Tracy Watson was the Acting Director of the City of Austin Planning and Development Department; all other individual appellees were no longer associated with the City of Austin in any official capacity. Mullen, Cooke, and Cooksey had served as mayor, and Carrasco had served as city manager. The other individual appellees had served as Austin City Council members.

2. Austin is a home rule municipal corporation. See Bailey v. City of Austin, 972 S.W.2d 180, 192 (Tex. App.--Austin 1998, pet. denied).

3. Tracy Watson, the Director of the City of Austin Planning and Development Department, testified that highway mile markers do not necessarily provide accurate measurements and are not relied upon as survey data.

4. In 1991, the Marsha Water Corporation requested that the City provide it wholesale water service. Although the City determined that it could sell water to Marsha for the use of existing customers, the City maintained that any "new service or upgrade to existing service will necessitate the tracts in compliance with City, County and State requirements."

5. The summary judgment evidence indicates that Parker attempted to resolve his problem by contacting city council members, the mayor's office, and numerous city employees in several departments. The proof does not reflect any continuous, intentionally harmful conduct by any one particular employee or official but rather a fragmented and, perhaps, inept effort on the part of various city representatives.

6. Parker cannot recover under 42 U.S.C. section 1983 either.

Section 1983 imposes liability for violations of rights protected by the United States Constitution, not for violations of duties of care arising out of tort law. See 42 U.S.C. § 1983 (1994); C.M. v. Tomball Regional Hosp., 961 S.W.2d 236, 242-43 (Tex. App.--Houston [1st Dist.] 1997, no writ) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 447 (5th Cir. 1994)). Because Parker has not been deprived of a right secured by the United States Constitution, he cannot bring a cause of action under 42 U.S.C. section 1983. See Upton County v. Brown, 960 S.W.2d 808, 814 (Tex. App.--El Paso 1997, no writ) (citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991)). Section 1983 is not a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker v. McCollum, 443 U.S. 137, 144 (1979)).

7.

In order to maintain a negligence action, a plaintiff must satisfy three basic elements: (1) a legal duty on the part of one person to another; (2) breach of that legal duty; and (3) injury to the person to whom the duty is owed as a proximate result of the breach. See City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987). The threshold inquiry is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (citing Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993)). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id. (citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).

8.

Parker stated "[s]uit is brought pursuant to Sections 101.0215, 101.025, and 102.002 of the Civil Practice and Remedies Code which allows a local government to pay for damages resulting from an act of an employee in the course of his or her employment arising out of an act or omission." Chapter 101 of the Texas Civil Practice and Remedies Code is generally referred to as the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.002 (West 1997).

9. Parker transmitted by facsimile his Third Amended Petition at 5:40 p.m., on Friday, January 30, 1998. Pursuant to Rule 21 of the Texas Rules of Civil Procedure, service by telephonic document transfer after 5:00 p.m. shall be deemed served on the following day, which in this case, was a Saturday. See Tex. R. Civ. P. 21. The next business day was Monday, February 2, 1998, two days before the hearing on Defendant's Motion for Summary Judgment.

10. Municipal corporations, like the City of Austin, exercise their broad powers through two different roles: proprietary and governmental. See Gates v. City of Dallas, 704 S.W.2d 737, 738 (Tex. 1986). Proprietary functions are those functions performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the municipality. See City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987) (citing Gates, 704 S.W.2d at 739). Governmental functions are acts performed by the municipality "as an agent of the State in furtherance of general law for the interest of the public at large." Pike, 727 S.W.2d at 519 (citing Gates, 704 S.W.2d at 739).

Before the Tort Claims Act was passed, governmental liability was limited to proprietary functions. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997). Municipalities were afforded governmental immunity for performance of governmental functions. Bailey v. City of Austin, 972 S.W.2d 180, 192 (Tex. App.--Austin 1998, pet. denied) (citing Gates, 704 S.W.2d at 738-39). The Tort Claims Act provides for a limited waiver of governmental immunity. Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (Tex. 1997). When a tort is committed by a City representative in the performance of a proprietary function, provisions of the Tort Claims Act do not apply and the municipality is subject to the same duties and liabilities as those incurred by private persons and corporations. Gates, 704 S.W.2d at 739; Turvey v. City of Houston, 602 S.W.2d 517, 518 (Tex. 1980).

11. Section 101.0215 lists activities that fall within a municipality's governmental functions, including: health and sanitation services; sanitary and storm sewers; waterworks; zoning, planning, and plat approval; and water and sewer service. See

Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (West 1997).

12. "'Qualified immunity' is one of several interchangeable terms (including 'quasi-judicial immunity,' 'discretionary immunity,' 'official immunity,' and 'good faith immunity') used to refer to an affirmative defense available for governmental employees sued in their individual capacities." City of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993) (citing Travis v. City of Mesquite, 830 S.W.2d 94, 100 n.2, 102-03 (Tex. 1992) (Cornyn, J., concurring)).

13. The summary judgment proof establishes that the city planning department had the exclusive authority to determine, on behalf of the City, whether a parcel of land was a legal lot or a legal subdivision. Tracy Watson, the only individual appellee associated with the planning department, stated that prior to January or February of 1993, he was never requested to look into any matter concerning L. W. Parker or the Pamela Heights subdivision. When this request was made, Watson testified that he promptly asked his staff at the planning department to investigate; on February 22, 1993, Watson notified Parker that Pamela Heights had been recognized as a legal subdivision.

14. Although the above quoted language does not apply to either Tracy Watson or Jorge Carrasco, we find that they too were acting within the scope of their duties as Acting Director of the City of Austin Planning and Development Department and city manager, respectively.

M>. (citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).

8. Parker stated "[s]uit is brought pursuant to Sections 101.0215, 101.025, and 102.002 of the Civil Practice and Remedies Code which allows a local government to pay for damages resulting from an act of an employee in the course of his or her employment arising out of an act or omission." Chapter 101 of the Texas Civil Practice and Remedies Code is generally referred to as the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.002 (West 1997).

9. Parker transmitted by facsimile his Third Amended Petition at 5:40 p.m., on Friday, January 30, 1998. Pursuant to Rule 21 of the Texas Rules of Civil Procedure, service by telephonic document transfer after 5:00 p.m. shall be deemed served on the following day, which in this case, was a Saturday. See Tex. R. Civ. P. 21.