State v. City of Galveston

175 S.W.3d 1, 2004 Tex. App. LEXIS 8371, 2004 WL 2066448

• Court: Court of Appeals of Texas
• Decided: September 10, 2004
• Docket: 01-03-00557-CV
• Status: Published

Opinions

OPINION

TIM TAFT, Justice.

Appellant, the State of Texas, appeals from a final order granting the plea to the jurisdiction of appellee, the City of Galveston (“the City”), and dismissing the cause. We decide whether a municipality enjoys governmental immunity from the State’s lawsuit for negligence and actual damages. Answering the question in the negative, we reverse the order and remand the cause.

Standard of Review

In deciding a plea to the jurisdiction, a trial court considers the plaintiffs pleadings and any evidence pertinent to the jurisdictional inquiry. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000); see also Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 867-68 (Tex.2001). We review de novo a trial court’s ruling on a jurisdictional plea, construing the pleadings in the plaintiffs favor and looking to the pleader’s intent. See Tex. Natural Res. Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Junemann v. Harris County, 84 S.W.3d 689, 693 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

Background

The parties submitted no evidence; thus, our facts come from the State’s petition, viewed in the appropriate light. See Tex. Ass’n of Bus., 852 S.W.2d at 446. The City and Galveston County asked the Texas Department of Transportation (“TxDOT”) to build a roadway in Galveston County. As part of the agreement, the City “provided for the adjustment of all utilities, including a municipal water line which ran underneath a ramp approach and bridge deck of the roadway.” The finished roadway was later designated as part of the State highway system. The City’s waterline underlying the highway ruptured, causing erosion that threatened to collapse the highway and its bridge structures. The State spent its funds to repair the damage.

The State, on behalf of TxDOT, sued the City for negligence in the installation, maintenance, and upkeep of the water line. The State sought actual damages of $180,872.53, pre-judgment interest, attorney’s fees, and costs. The City asserted governmental immunity from suit and filed a jurisdictional plea.¹ Specifically, the City argued that it enjoyed governmental immunity from suit and that the State had not pleaded a cause of action for which the Texas Tort Claims Act² (“TTCA”) waived that immunity. The State responded on the ground that the City did not enjoy governmental immunity from the State’s claims against it because the City’s immunity derives wholly from that of the State. After a non-evidentiary hearing, the trial court granted the City’s jurisdictional plea and dismissed the cause.

The City Does Not Enjoy Governmental Immunity from the State’s Suit Asserting Negligence Claims for Actual Damages

Neither party disputes that the City performed a governmental function in committing the acts alleged by the State to have been negligent. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.0215(11), (32) (Vernon 1997 & Supp.2004-2005) (defining municipality’s governmental functions as including “waterworks” and “water and sewer service”); see also City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392, 396 (Tex.App.-Dallas 2002) (holding that section 101.0215(11) and (32) encompass the act of marking underground water delivery system), rev’d on other grounds, No. 02-1031, 2004 WL 726906, — S.W.3d -- (Tex. Apr.2, 2004). A city’s performance of a governmental function entitles it to immunity from suit brought by private parties for tort damages arising out of that function’s performance, absent a waiver of that immunity from suit in, for example, the TTCA. See, e.g., Tex. Civ. Phac. & Rem.Code Ann. §§ 101.021, 101.0215(a), 101.025 (Vernon 1997 & Supp. 2004-2005).

In its sole issue, the State maintains that the trial court erred in granting the City’s jurisdictional plea because any immunity from suit that the City possesses, as a political subdivision of the State, is an extension of the State’s own immunity from suit and does not shield the city against the claims of the State itself. As the State explains, the City’s immunity from suit “does not arise from any inherent sovereignty of [its] own, but instead derives from [its] status as [a] political subdivisio[n] of the State”; accordingly, the City impermissibly asserts “the State’s immunity against the State itself.” From this premise, the State concludes that no waiver of immunity from suit from within the TTCA is required for the State to sue the City for the latter’s negligence.

A. Municipalities Derive Their Immunity From That of the State, as Sovereign

We look to common-law principles to determine whether the City enjoys governmental immunity from suit in this case. See Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.Sd 518, 520 (Tex.2002) (“In Texas, the bar of sovereign immunity is a creature of the common law and not of any legislative enactment.”).

Municipalities are political subdivisions of the State. See Lake Charles Harbor & Terminal Dist. v. Bd. of Trs. of Galveston Wharves, 62 S.W.3d 237, 246 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); cf Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp.2004-2005) (“ ‘Governmental unit’ means: ... a political subdivision of this state, including any city....”). Since 1884, municipalities have enjoyed immunity when performing governmental functions, but not when performing proprietary functions. See, e.g., City of Galveston v. Posnainsky, 62 Tex. 118, 132-33 (1884) (first distinguishing between municipality’s governmental and proprietary functions for purposes of immunity from tort claims). In reaching this holding, the Posnainsky court reasoned that

in so far as municipal corporations ... exercise powers conferred on them for purposes essentially public — purposes pertaining to the administration of general laws made to enforce the general policy of the state — they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignty, whose agents they are, subject to be sued only when the state, by statute, declares they may be.

Id. at 127 (emphasis added). The supreme court’s reasoning shows that municipalities enjoy immunity from suit for governmental activity, not due to any inherent sovereignty, but, rather, because the State cloaks them with the State’s sovereign immunity from suit while they carry out the State’s public purposes. See id. at 126-27. Thus, any immunity from suit that a municipality enjoys derives solely from the State’s immunity — the former receives immunity from suit only when carrying out governmental activities implicitly delegated to it to carry out in the latter’s stead. See id. at 128; cf. Tex. Civ. PRác. & Rem. Code Ann. § 101.0215(a) (defining “governmental functions” as “those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public_”). Texas courts have repeatedly noted or applied variations of the “derived immunity” reasoning that the Pos-nainsky court first recognized.³

Our sister court in Austin, based on a derived immunity reasoning, recently resolved an issue similar to the one before us in favor of the State. See Tex. Workers’ Comp. Com’n v. City of Eagle Pass/Tex. Mun. League Workers’ Comp. Joint Ins. Fund, 14 S.W.3d 801, 806 (Tex.App.-Austin 2000, pet. denied). In Eagle Pass, the Texas Workers’ Compensation Commission (“TWCC”), a statewide agency,⁴ assessed administrative penalties against the city and its transportation authority (“Capital Metro”) for their having made late benefits payments in violation of the Labor Code. See id. at 803. The city and Capital Metro were undisputedly “political subdivisions.” See id. at 802-03, 805-06. The city and Capital Metro admitted violations, but claimed immunity from suit for administrative penalties under the sovereign-immunity doctrine. See id. at 803. The Austin Court of Appeals rejected the assertion, holding instead that a defense of immunity from suit was “inapplicable” to the State’s enforcement action:

Municipalities are created as political subdivisions of the State and “represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them.” A municipality’s sovereignty is dependent upon that of the State.... Because political subdivisions of the State do not possess such independent sovereignty, they have no immunity as against the State.

Under the common law doctrine of immunity, municipalities and other political subdivisions of the State possess limited immunity from actions brought by private third parties. This immunity results from agency principles and the fact that municipalities and political subdivisions are agents of the State. A political subdivision’s immunity is a privilege afforded it based on its existence as a subdivision of the State, and “[a] municipality, as a political subdivision of the state, is not liable for the acts or conduct of its officers or employees.... ” Thus, a political subdivision’s derivative immunity acts as a shield against actions brought by private parties but not as a shield against the State, from which the subdivision derives its immunity.

Id. at 803-04 (citations omitted; emphasis in original).

Cases from other jurisdictions support the Eagle Pass court’s holding and apply similar reasoning to tort suits brought by the State. See Bd. of Educ. of Prince George’s County v. Mayor & Common Council of the Town of Riverdale, 320 Md. 384, 578 A.2d 207, 210 (1990) (in tort suit brought by state, after noting that plaintiff was “state agency,” holding that “the immunity of ... municipalities is derived from the State’s sovereign immunity.... [T]he nature of governmental immunity for ... municipalities prevents them from asserting the defense of immunity when sued by the State or a State agency.”); Ohio v. City of Bowling Green, 38 Ohio St.2d 281, 313 N.E.2d 409, 412 & n. 2 (1974) (“[A municipality’s] immunity is derivative; it arises because the municipality, when performing a governmental function, is acting as an arm or agent of the state.... [W]here the injured party is the state itself, ... the situation resembles a suit by a principal against an agent whose negligence has resulted in damage to the principal. In such a situation it would be illogical to allow the municipality to assert its general tort immunity against the very source of that immunity.”).⁵

We agree with the Eagle Pass court’s reasoning and its conclusion. Accordingly, we hold that governmental immunity does not shield a municipality from the State’s suit asserting tort claims for actual damages because any immunity that a municipality enjoys derives from the State’s own immunity.

The City argues that we should distinguish this case from Eagle Pass because (1) the Labor Code expressly subjected the Eagle Pass defendants to administrative penalties, thus “accomplishing a clear and unambiguous waiver of whatever [governmental] immunity [did] exist,” and (2) Eagle Pass involved administrative penalties, rather than tort damages.

As for the first distinction, the City concedes that the Eagle Pass court did not base its pertinent holding on the fact that the Code provided for administrative penalties against political subdivisions. See Eagle Pass, 14 S.W.3d at 804. Indeed, the Eagle Pass court expressly concluded that governmental immunity simply did not apply to TWCC’s imposition of penalties, and, thus, an analysis of statutory waiver was unnecessary. See id. at 804. If immunity from suit does not apply, then no waiver of immunity from suit is necessary: one need not waive that which does not exist.⁶ Cf. Fed. Sign v. Tex. S. Univ., 951 (Tex.1997) (noting that private litigant does not need legislative permission to sue State for state official’s violations of state law because such violations are not acts of State, so that suit “is not a suit against the State that sovereign immunity bars”; thus concluding that “[-a] party can maintain a suit to determine its rights without legislative permission”), superseded by statute on other grounds as stated in Gen. Seros. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 593 (Tex.2001).

Like the City, Justice Keyes’s dissenting opinion argues that the Eagle Pass court did not need to resolve its case on the basis of the political subdivisions’ derivative immunity, but could instead have resolved the case on the ground that the Labor Code acted as a legislative waiver of immunity from suit. See Eagle Pass, 14 S.W.3d at 805 (in rejecting argument that, even if governmental immunity did not apply, Labor Code still did not empower Commission to assess penalties against political subdivisions, holding that the city and Capital Metro were “indisputedly ‘persons’ against which the Commission may assess an administrative penalty”). The Eagle Pass court could have done so, but expressly did not. It did not do so evidently because it — as do we — recognized that immunity from suit did not exist in the first place. We thus reject Justice Keyes’s (and Justice Jennings’s) assertion that our holding creates an exception to immunity from suit: we do not create an exception, but instead recognize that no immunity from suit exists when the sovereign seeks judicial redress. We similarly reject Justice Keyes’s argument that our holding “goes well beyond” that of the Eagle Pass court for the reason that “there is no statutory authority to support the majority’s decision that Galveston lacks immunity to TxDOT’s tort claims, unlike the statutory authority provided by the Labor Code in Eagle Pass.” The Eagle Pass court expressly declined to confine its pertinent holding to an interpretation of the Labor Code’s authorization for the assessment of penalties. See id. at 803-04.

As for the second distinction, we recognize that Eagle Pass involved the State’s assessment of administrative penalties, i.e., the State’s regulatory authority, rather than a tort suit brought by the State. See Eagle Pass, 14 S.W.3d at 803. We also recognize that tort claims and administrative penalties differ in important ways. Nonetheless, the Eagle Pass court’s reasoning encompasses the State’s tort claims. The fact that administrative penalties are fixed by statute, as the City notes, rather than unliquidated, as tort damages generally are, does not change the logic upon which Eagle Pass or derived immunity law is based. If a municipality does not enjoy immunity from suit brought by the sovereign from whom its immunity derives, then it should not matter whether the sovereign is seeking actual damages in tort or administrative penalties. We also reject Justice Jennings’s argument that Eagle Pass does not support our holding because its holding is allegedly limited to the context of the State’s regulatory authority. To the contrary, the Eagle Pass court’s holding is expressly broader than that, and its rationale and conclusion logically apply in any context in which the State sues its political subdivision. See id. Accordingly, we reject the City’s arguments distinguishing Eagle Pass.7

B. The Policy Behind Governmental Immunity Supports the Conclusion that the City Possesses No Immunity From the State’s Claim

The City further argues that holding that municipalities do not enjoy immunity from the State’s tort claims conflicts with the policy reasons behind governmental immunity. Sovereign immunity protects the public treasury by preventing the shifting of tax resources away from their intended purposes and towards defending lawsuits and paying judgments. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex.2003); IT-Davy, 74 S.W.3d at 854. We acknowledge that allowing the State to recover damages from a municipality potentially shifts costs from the State to the local level, depleting local coffers of funds that have already been budgeted for local matters. This shifting, however, also replenishes other public funds — those allocated in the state budget for public projects of the State and its agencies — that are lost due to the municipality’s alleged fault. For purposes of immunity, therefore, tort suits by the State differ in this significant respect from tort suits by individuals.

C. The State Has Brought this Suit in its Sovereign Capacity, and its Doing So Does Not Violate the Separation-of-Powers Doctrine

The City alternatively argues that, even if it does not enjoy immunity from suit from the sovereign’s tort claims, the City enjoys immunity from suit here because the State did not bring this suit in its capacity as sovereign. The City reasons that (1) the Judicial Department defers to the Legislature to waive sovereign immunity,⁸ though sovereign immunity is a centuries-old common-law creature of the Judiciary; ⁹ (2) the Attorney General is a member of the Executive Department,¹⁰ not the Legislative Department; and (3) by making a claim against a municipality on behalf of a department of the State, the Attorney General impermissibly is attempting to “share the Legislature’s power to set the appropriate boundaries on suits for damages paid by the people’s money out of state or local treasuries.” Similarly, starting from the premise that the people, rather than any single state agency, constitute the sovereign, the City further argues that the Attorney General has not appeared on behalf of the “state as state,” but instead “has appeared merely on behalf of TxDOT — a constituent state agency,” which the Legislature has “never empowered to exempt any city functions from the general rule of governmental immunity.”

The City is thus arguing that TxDOT has not sued in the State’s sovereign capacity and, alternatively, that if TxDOT is suing in the State’s sovereign capacity, it is violating the Constitution’s separation-of-powers provision by doing so. See Tex. Const, art. II, § 1. We address both arguments.

We first treat the City’s argument that the Attorney General does not represent the State as sovereign in this suit, but is instead representing only “TxDOT — a constituent state agency.” We agree that the people do constitute the sovereign (i.e., “the State”),¹¹ but it is indisputable that the people act as sovereign through the branches, agencies, and departments of the state government that they have adopted. See, e.g., Tex. Const. art. I, § 2, art. II, § 1, art. Ill, § 1, art. IV, § 1, art. V, § 1. The department of state government through which the sovereign people plan, construct, and maintain their state highways (the property alleged to have been damaged here) is TxDOT. See Tex. TRAnsp. Code Ann. §§ 201.103(a), 201.601, 201.202(a)(2) (Vernon 1999 & Supp.2004-2005). TxDOT is considered “the State” because, among other things, it has statewide jurisdiction and the governor appoints certain of its governing officials.¹² Accordingly, the Attorney General does not appear “merely on behalf of TxDOT” in this suit, but instead represents the interests of the sovereign State of Texas.¹³

This is, of course, the Attorney General’s job. His primary duties are “to render legal advice in opinions to various political agencies and to represent the State in civil litigation.” Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001) (emphasis added); see Tex. Const, art. IV, § 22 (“The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party ... and give legal advice in writing to the Governor and other executive officers ... and perform such other duties as may be required by law.”); Tex. Gov’t Code Ann. § 402.021 (Vernon 1998) (“The attorney general shall prosecute and defend all actions in which the state is interested before the supreme court and courts of appeals.”); cf. Tex. Const, art. V, § 21 (as part of the Judicial Department, “[t]he County Attorneys shall represent the State in all cases in the District and inferi- or courts.... ”). The Attorney General has thus been described as “the State’s chief legal officer.” Del Rio, 67 S.W.3d at 92. In appearing in this litigation, therefore, the Attorney General is fulfilling his duty to represent the State in civil suits. Contrary to the City’s argument, the Attorney General is not usurping legislative power by “waiving” immunity from suit, but, rather, represents the position of the State, as its advocate, that no immunity exists in the first instance for this type of claim. As the State’s chief legal officer, it is within his ambit to seek legal redress in the courts on behalf of the State.

As for the City’s contention that our holding allows the Attorney General (or TxDOT) to violate the separation-of-powers doctrine¹⁴—a charge that the dissenting opinion also asserts—we disagree. The City contends that allowing the Attorney General, a member of the Executive Department, to sue effectively “waives” immunity from suit, a power traditionally placed with the Legislature in our common-law precedent.

If the Attorney General sought a judicial waiver of the City’s immunity on the State’s behalf, then he would have to defer to the Legislature to accede to such a waiver. But the State and the Attorney General seek no such thing. Rather, they contend that a political subdivision has no judicial immunity from the State’s suit to begin with because the State is the supreme sovereign. Thus, we decide in this case whether the City enjoys immunity from suit in the first instance. If the City does not enjoy immunity from this type of suit at all, then there is no immunity from suit to waive. If there is no immunity from suit to waive, then the Attorney General may represent the State in this claim for redress.¹⁵ See Tex. Const, art. TV, § 22; Tex. Gov’t Code Ann. § 402.021; Del Rio, 67 S.W.3d at 92. We will not judicially limit the State’s power to seek redress absent legislative action or constitutional amendment limiting the State’s power to do so.

D. Home-Rule Status Does Not Make a Municipality Its Own Sovereign for Purposes of Immunity

The City argues that the home-rule amendment allows the City to enjoy “immunity from suit and liability to the same extent as the State itself.” See Tex. Const. art. XI, § 5; see also City of Galveston v. Giles, 902 S.W.2d 167, 170 (Tex.App.Houston [1st Dist.] 1995, no writ) (noting City of Galveston’s home-rule status).

The State of Texas added the home-rule amendment to the Texas Constitution in 1912. See 22 David B. BROoks, Texas PRACTICE: Municipal Law & PRACTICE § 1.17 (2nd ed.1999) [hereinafter “Brooks”]; Tex. Const, art. XI, § 5; see also Act of March 31, 1913, 33rd Leg., R.S., ch. 147, § 4, 1913 Tex. Gen. Laws 307, 310-16 (now appearing at Tex. Loc. Gov’t Code Ann. §§ 51.071-079 (Vernon 1999 & Supp.2004-2005)) (enabling legislation). The purpose of the home-rule amendment is “to bestow upon the cities coming under the ... Amendment ‘full power of local-self government.’ ... It was the intention ... to give to cities the right to determine for themselves what kind of charter they should live under.” City of Houston v. City of Magnolia Park, 115 Tex. 101, 276 S.W. 685, 689 (1925) (citation omitted); accord City of Houston v. State ex rel. City of W. Univ. Place, 142 Tex. 190, 176 S.W.2d 928, 929 (1943) (quoting Magnolia Park). The amendment was intended “to obviate the necessity of [home-rule] cities coming to the Legislature whenever any change was desired in their charters, and in order to facilitate selfgovernment....” Anderson v. Brandon, 121 Tex. 188, 47 S.W.2d 261, 262 (1932); see City of Wichita Falls v. Cont’l Oil Co., 117 Tex. 256, 1 S.W.2d 596, 597 (1928) (noting that “primary purpose” of amendment was “convenience and directness of this method of city government”). Accordingly, the amendment eliminated the longstanding practice of having the Legislature grant and amend special charters and instead allowed qualifying municipalities to adopt and to amend their charters without legislative approval, as long as the charter did not infringe upon the state Constitution or laws passed by the Legislature. See Tex. Const, art. XI, § 5; Tex. Loc. Gov’t Code Ann. § 51.072 (Vernon 1999); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 26 & 26 n. 5 (Tex.2003); Anderson, 47 S.W.2d at 262; Brooks § 1.17.

In carrying out these purposes, the home-rule amendment and its enabling statutes authorized municipalities “to do anything [that] the legislature could theretofore have authorized them to do.” Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (1948) (describing home-rule municipality as “a delegate of legislative power”); City of San Antonio, 111 S.W.3d at 26 n. 5. In this sense, home-rule cities derive their powers from the Texas Constitution. See Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex.1998); Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 352 (Tex.App.-San Antonio 2000, pet. denied). Municipalities adopting a home-rule charter thus have “the full power of self government” and look to the Legislature only for limitations on their power. Perry v. Greanias, 95 S.W.3d 683, 694 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); accord Giles, 902 S.W.2d at 170 (describing home-rule city’s powers as “plenary”); see Tex. Loc. Gov’t Code Ann. § 51.072(a) (“The [home-rule] municipality has full power of local self-government.”).

Although the home-rule amendment grants municipalities powers of self-determination, it does not — as the City argues — transform municipalities into independent sovereigns for purposes of immunity from suit. Indeed, the opposite is true. Like all municipalities, home-rule municipalities “‘represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them.’” Lake Charles Harbor & Terminal Dist., 62 S.W.3d at 246 (quoting this holding of Payne v. Massey, 145 Tex. 237, 196 S.W.2d 493, 495 (1946), despite fact that City of Galveston is homerule city); Eagle Pass, 14 S.W.3d at 803 (holding same, despite fact that City of Eagle Pass is home-rule city).¹⁶ The home-rule amendment’s delegation of legislative authority did nothing to change the nature of state sovereignty. Accordingly, home-rule municipalities’ immunity from suit for governmental functions does not arise from their home-rule status, but instead devolves from the State’s sovereign immunity. See Eagle Pass, 14 S.W.3d at 803-04. Simply put, the State of Texas, in contrast to the United States of America, is not a federation of sovereign cities. Instead, the State of Texas is itself the sole, superior sovereign. See Eagle Pass, 14 S.W.3d at 803 (“While it is well established that sovereign immunity protects the federal government from state suits and vice versa, this immunity stems from the basic precept of federalism that the federal and several state governments each possess independent sovereignty. Because political subdivisions of the State do not possess such independent sovereignty, they have no immunity as against the State.”).

If the City were correct that a home-rule municipality’s immunity is coextensive with that of the State, the proprietary-governmental distinction that consistently has been recognized for 120 years would disappear, so that a home-rule municipality would enjoy immunity from tort suits arising from any activity that it conducted— just as the State does¹⁷ — not just for its governmental functions. Yet courts have repeatedly cited Posnainsky, noted the common-law proprietary-governmental distinction, or applied that distinction in considering the immunity of home-rule municipalities.¹⁸ This is yet another reason that the City’s position cannot be correct.

For these reasons, we reject the City’s arguments based on its home-rule status.

E. The Authority on Which the City Relies Does Not Control

Finally, the City relies on five opinions to support its argument that municipal immunity from suit is not derived from the State’s or that a municipality enjoys immunity from the State’s suit for tort damages.

The City first relies on Texas Department of Transportation v. Able, claiming that the majority’s implicit rejection of an argument made by the dissent based on the State’s “superior-sovereign” status indicates that a superior-sovereign (or derived immunity) limit upon immunity does not exist. See id., 35 S.W.3d 608 (Tex. 2000). Able did not involve a suit by the State against a municipality, however, and the majority’s opinion did not discuss or reject the dissenting justices’ analysis, but chose to address the issues presented on different grounds.

The City next relies on Texas Department of Transportation v. City of Sunset Valley. See id., 92 S.W.3d 540 (Tex.App.-Austin 2002, pet. granted); see also Tex. Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727 (Tex.App.-Austin 1999, no pet.) (earlier interlocutory appeal in same suit). In Sunset Valley, however, TxDOT asserted that it enjoyed sovereign immunity from the city’s claims, which is the inverse situation from that existing here. See id., 8 S.W.3d at 732-33. Nothing in the derivative-immunity law originating with Posnainsky precludes the State from asserting sovereign immunity from suit when it is sued by its own political subdivision.

The City further relies on Guillory v. Port of Houston Authority. See id., 845 S.W.2d 812 (Tex.1993). In Guillory, the court rejected a private plaintiffs request to classify the port authority defendant’s activities as proprietary functions, so that immunity would not be a bar, because (1) doing so would have required overruling precedent holding that such districts exercised solely governmental functions and (2) “the limitation on immunity which Guillory seeks has the same effect as a waiver,” which the court concluded was a legislative matter. Id. at 814-15. Here, however, we do not waive or limit existing governmental immunity from suit. Instead, we recognize that the State is constitutionally empowered to sue and that the City’s governmental immunity from suits asserting such claims is wholly absent to begin with.

Finally, the City relies on two cases in which a non-municipal political subdivision sued a municipality for damages and in which the court assumed that immunity from suit or liability applied. See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 839-40 (Tex.2000); City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 313 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). We conclude that the cited cases do not apply in determining whether the City enjoys immunity from suit here because neither case involves the State’s suing a political subdivision. Absent a statutory definition to the contrary, political subdivisions of the State are not, generally speaking, considered “the State.” See Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939-40 (Tex.1993) (“The ordinary meaning of ‘state’ ... envisions an entity having statewide jurisdiction, rather than an entity having local or limited jurisdiction.... ‘[A] political subdivision differs from a department, board or agency of the State.’ ”) (quoting Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex.1980)). Generally speaking, for a governmental entity to be considered “the State,” the entity must have statewide jurisdiction, have a governing person or body that is elected in statewide elections or is appointed by a state official, and lack the power to assess or to collect taxes. See Monsanto, 865 S.W.2d at 940-41; see also Guar. Petroleum, 609 S.W.2d at 531. In contrast, political subdivisions normally have jurisdiction over only a portion of the state, have members of their governing body who are elected in local elections or are appointed by locally elected officials, and have the power to assess and to collect taxes. See Monsanto, 865 S.W.2d at 940; see also Guar. Petroleum, 609 S.W.2d at 531.

We conclude that these general definitions of “the State” and “political subdivisions” make sense in the context of determining immunity from suit in lawsuits between governmental entities, and we adopt these definitions for that specific context.¹⁹ The plaintiffs in the cases cited by the City are political subdivisions of the State or like entities with limited jurisdiction.²⁰ In contrast, we do not have before us a suit between subdivisions of the State, but instead a suit by the State against a political subdivision. The opinions that amici curiae offer in support of the City’s position are similarly distinguishable because, in them, the plaintiff is a political subdivision or a private entity or because the defendant or counter-defendant is a statewide agency.²¹

Conclusion

We hold that a municipality — even a home-rule one — does not enjoy governmental immunity from the State’s suit for negligence against it. Just as the decision to waive or to abrogate immunity from suit lies with the Legislature or the people through Constitutional amendment, so does the decision to limit the State’s power to sue and to seek redress upon behalf of the people of Texas in Texas courts. Our holding today recognizes that the sovereign State possesses the authority to seek redress in its courts against its own political subdivisions and that they possess no blanket immunity from suit in such situations.

We do not address the State’s wisdom in bringing a claim in tort, but only its authority to do so. Ultimately, the State, as sovereign, is empowered to seek redress and to enforce state law. Without such authority, political subdivisions of the State would adopt the mantle of independent sovereigns over whom the State, through its chief legal officer, could seek no redress.

We reverse the order and remand the cause with instructions for the trial court to reinstate the cause and to deny the City’s jurisdictional plea.

Justice KEYES, dissenting.

En banc consideration was requested.

A majority of Justices voted against en banc consideration.

Justice JENNINGS, dissenting from the denial of en banc consideration.

1 . The motion that the City filed was a combined jurisdictional plea, traditional summary judgment motion, and special exception, but the trial court granted the motion only to the extent that it asserted a jurisdictional plea.

2 . See Tex. Civ. Prac. & Rem Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2004-2005).

3 . See, e.g., Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 n. 12 (Tex.2000) (citing Posnainsky and noting its explanation that city is deemed agent of state for sovereign-immunity purposes when city exercises powers for public purpose); Gates v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex.1986) ("The governmental functions of a municipal corporation have been defined as those acts which are public in nature and performed by the municipality 'as the agent of the State in furtherance of general law for the interest of the public at large.’ ”) (citation omitted); State v. Brannan, 111 S.W.2d 347, 348-49 (Tex.Civ.App.-Waco 1937, writ ref’d) ("In other words, a city has no sovereignty of its own and likewise no immunity of its own, but borrows its sovereignty from the state and is immune only in so far as it acts as an agent of the state.”); City of San Benito v. Ebarb, 88 S.W.3d 711, 720 (Tex.App.-Corpus Christi 2002, pet. denied) (“A city is deemed an agent of the state for sovereign immunity purposes when exercising its powers for a public purpose.”); Lake Charles Harbor & Terminal Dist. v. Bd. of Trs. of Galveston Wharves, 62 S.W.3d 237, 246 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) ("Municipalities, such as the City of Galveston, are creatures of our law and are created as political subdivisions of the state as a convenient agency for the exercise of such powers as are conferred upon them by the state.”); Tex. Workers’ Comp. Com’n v. City of Eagle Pass/Tex. Mun. League Workers’ Comp. Joint Ins. Fund, 14 S.W.3d 801, 803-04 (Tex. App.-Austin 2000, pet. denied) ("A municipality’s sovereignty is dependent upon that of the State.... [Municipalities’] immunity results from agency principles....”); Bailey v. City of Austin, 972 S.W.2d 180, 192 (Tex.App.Austin 1998, pet. denied) ("Governmental functions are those public acts which the municipality performs 'as the agent of the State in furtherance of general law for the interest of the public at large.' ”) (quoting Gates, 704 S.W.2d at 738); Lawrence v. City of Wichita Falls, 906 S.W.2d 113, 115 (Tex.App.-Fort Worth 1995, writ denied) ("Historically, under the common-law doctrine of sovereign immunity, municipalities were immune from liability as agents of the State.”); see also City of Houston v. Southwest Concrete Construction, Inc., 835 S.W.2d 728, 730 (Tex.App.Houston [14th Dist.] 1992, writ denied) (stating that municipality is "afforded the state’s sovereign immunity” in performing governmental functions as defined by TTCA, except to extent that TTCA waives immunity); Faulk v. City of Tyler, 389 S.W.2d 706, 707 (Tex.Civ.App.-Tyler 1965, writ ref'd n.r.e.) ("As such sub-divisions of the State, exercising locally a portion of the powers of a State, such municipalities have no greater rights, immunities, or exemptions than does the State of Texas from which exclusively it derives its rights and powers.”); cf. City of Beaumont v. Calder Place Corp., 143 Tex. 244, 183 S.W.2d 713, 716 (1944) ("Respondent [corporation] could no more circumscribe the exercise of [the power to own, to operate, and to maintain a water-works system] in the hands of the agent [home-rule municipality] ... than it could if that power were still in the hands of the principal, the State of Texas.”).

4 . See Tex. Lab.Code Ann. §§ 402.001(a), 402.002(b), 402.061, 403.001, 403.005 (Vernon 1996 & Supp.2004-2005).

5 . The distinctions that the City attempts to draw between the law of these other jurisdictions and that of Texas are unpersuasive. For example, whether, as the City argues, these jurisdictions differ from Texas in recognizing how a waiver of immunity is accomplished is immaterial because neither these courts (nor the Eagle Pass court) have waived immunity; rather, these courts recognized that a municipality’s immunity does not extend to tort claims brought in the name of the State. We likewise find insignificant the fact, noted by the City, that, in Ohio v. City of Bowling Green, the state was obliged to sue the city under the "public trust” doctrine, which at least one Texas court has noted has "not fared well” in Texas. See id., 38 Ohio St.2d 281, 313 N.E.2d 409, 411 (1974). Compare Natland Corp. v. Baker’s Port, Inc., 865 S.W.2d 52, 60 (Tex.App.-Corpus Christi 1993, writ denied) ("This [public-trust] doctrine that the sovereign holds submerged lands in trust for the benefit and use of the public ... has not fared well in Texas jurisprudence.”). Whatever effect the public-trust doctrine might have on governmental immunity, the court separated its public-trust holding from its derived immunity holding, and the logic that the court applied to the latter holding supports the conclusion in Eagle Pass. See City of Bowling Green, 313 N.E.2d at 410, 411 (noting in "Syllabus by the Court” that appellant’s challenge to which public-trust doctrine applied was raised "apart from any issue [of] sovereign immunity” and treating the two holdings separately in opinion).

6 . Justice Keyes’s dissenting opinion asserts that our holding "contravenes the plain language of the applicable statute, the TTCA....” The TTCA waives sovereign immunity from suit, but does not confer it. See Tex. Civ. Prac. & Rem.Code Ann. § 101.025(a); Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520 (Tex.2002). No statutory waiver is implicated if there is no immunity from suit to waive. Because it is the State that has sued a city, the TTCA's provisions waiving immunity from suit do not apply. We likewise reject Justice Jennings's arguments, in his opinion dissenting from denial of en banc consideration, based on the TTCA’s provisions waiving immunity from liability (and, by incorporation, from suit). See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (establishing waiver of immunity from liability by providing, "A governmental unit ... is liable for: [enumerated acts].”). In effect, Justice Jennings argues that, because section 101.021 does not mention that common-law immunity does not extend to suits brought by the State, the Legislature must have believed that common-law immunity applies to governmental units regardless of who sues them, including the State. We disagree. The Legislature created the TTCA with the purpose of waiving preexisting common-law immunity from suit and liability in limited circumstances, rather than with the purpose of spelling out every parameter of that common-law immunity. See Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994) ("In 1969, the Legislature enacted the [TTCA] to waive governmental immunity only in certain circumstances.”); Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 686 (Tex.1992) (Cornyn, J., dissenting) (setting out TTCA’s legislative history); see also City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997) (noting that TTCA "merely waives sovereign immunity as a bar to a suit that would otherwise exist.”). Section 101.021’s failure to note every situation in which common-law immunity might or might not apply thus does not have the significance that Justice Jennings attributes to it. Moreover, it is centuries of judicial common-law precedent that created immunity, not the Legislature. See Lawson, 87 S.W.3d at 520; cf. Likes, 962 S.W.2d at 503 (noting that constitutional amendment allowing Legislature to classify municipalities’ acts as “governmental” precluded open-courts challenge that otherwise could have been asserted against TTCA’s amendment expanding immunity by recharacterizing municipal activity as governmental). Common-law immunity from suit has never extended to claims brought by the State against its subdivisions, and no waiver of immunity from suit from within the TTCA is thus needed or applies. Instead, absent the Legislature's express disavowal of the State's right to seek redress in Texas courts against its own subdivisions, it is not for the Judiciary to abrogate this right of the sovereign through the common law. We also reject amici’s assertion that Civil Practice and Remedies Code chapter 107, which "applies to resolutions granting permission to sue the state or any of its agencies,” indicates that legislative consent is required. See Tex Civ. Prac. & Rem.Code Ann. §§ 107.001-.005 (Vernon 1997). Like the TTCA’s applicable provisions, the corresponding provisions of Chapter 107 necessarily apply only if there is immunity from suit to waive. Amici nonetheless note that chapter 107 mentions resolutions "that [grant] a person permission to sue the state.” Tex. Civ. Prac. & Rem.Code Ann. § 107.002(a) (Vernon 1997) (emphasis added). They argue that, because "person” is defined to include any "government or governmental subdivision or agency," chapter 107 impliedly includes TxDOT among those required to seek legislative permission to sue. See Tex. Gov’t Code Ann. § 311.005(2) (Vernon 1998); Tex. Civ. Prac. & Rem.Code Ann. §§ 1.002, 107.001-.005 (Vernon 1997). However, that definition of person applies unless "the statute or context in which the word or phrase is used requires a different definition.” Tex Gov’t Code Ann. § 311.005. It makes no sense to require a legislative waiver of immunity from suit when no immunity from suit exists at all. Moreover, chapter 107 requires that the claimant serve "citation and other required process ... on the attorney general,” as well as on the individual whom the resolution designates as representative of the state-agency defendant. Tex Civ. Prac. & Rem.Code Ann. § 107.002(3). It likewise makes no sense to require service on the State, via the Attorney General, when the State is also the plaintiff in the same suit.

7 .As a final matter, we note that this appeal does not concern immunity from liability, e.g., whether a political subdivision has immunity from liability when sued by the State or whether the Legislature can cap or bar damages against a political subdivision in suits like this. The matter simply is not before us, and we express no opinion about it.

8 . See Tex. Natural Res. Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002).

9 . See Lawson, 87 S.W.3d at 520.

10 . See Tex. Const, art. IV, § 1.

11 . See Tex. Const, art. I, § 2.

12 . See Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 940 (Tex.1993); see also Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex.1980); see also Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000) (noting that immunity applies to State and "its agencies such as TxDOT.”); Tex. Transp. Code Ann. §§ 201.002, 201.051(a), 201.053, 201.101, 201.103, 201.201, 201.202, 201.601, 202.001(a), 222.001, 222.002.

13 . Contrary to the dissenting opinion’s charge, our holdings concerning separation of powers, whom the Attorney General represents in this suit, and whether the City enjoys immunity from the State’s suit do not rest on a belief that governments of political subdivisions do not represent "the people.” Local governments represent their constituent populations just as statewide governments do. Both represent "the people.” It is simply in responding to the City's implicit allegation that TxDOT does not represent the sovereign people that we note that TxDOT does.

14 . The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy.... [A]nd no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const, art. II, § 1. "The separation-of-powers doctrine prohibits one branch of government from exercising a power inherently belonging to another branch.” Gen. Servs. Com'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex.2001).

15 . For this reason, the opinions that amici cite for the proposition that the Texas Supreme Court has "rejected a number of arguments seeking to prove a waiver of sovereign immunity through actions other than legislative acts” are inapplicable. See IT-Davy, 74 S.W.3d at 856-58 (holding that State agency’s fully accepting benefits under contract did not waive sovereign immunity from suit and that administrative agent, as part of Executive Department, could not waive immunity from suit in contract); Little-Tex Insulation Co., 39 S.W.3d at 597 (holding that waiver-by-conduct exception to sovereign immunity from suit does not exist in breach-of-contract case).

16 . See also Payne v. Massey, 145 Tex. 237, 196 S.W.2d 493, 495 (1946); Braman, 111 S.W.2d at 348-49 (noting that "a city has no sovereignty of its own and likewise no immunity of its own, but borrows its sovereignty from the state and is immune only in so far as it acts as an agent of the state.”); cf. City of Irving v. Dallas/Fort Worth Int’l Airport Bd., 894 S.W.2d 456, 465 (Tex.App.-Fort Worth 1995, writ denied) (noting, in context of Contract-Clause challenge, that "a municipality's sovereignty is dependent upon that of the state.”).

17 . See Brannon, 111 S.W.2d at 348 ("All authority possessed by a state is that conferred on it as a sovereignty by the people and consequently it can act in no other capacity than that of a sovereignty. It is inherently and exclusively sovereign and must necessarily act as such at all times and in all capacities. As a sovereignty, it is immune from liability for torts and since it can act in no other capacity than that of a sovereignty, it is necessarily immune from liability for torts at all times and in all its capacities.”).

18 . See, e.g., Fort Worth Indep. Sch. Dist., 22 S.W.3d at 840 & 840 n. 12; Gates, 704 S.W.2d at 738 (City of Dallas); City of Corsicana v. Wren, 159 Tex. 202, 317 S.W.2d 516, 517-19, 521 (1958); City of Mexia v. Tooke, 115 S.W.3d 618, 620-21 (Tex.App.-Waco 2003, pet. granted); Perry v. Greanias, 95 S.W.3d 683, 693-94 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (City of Houston); Bailey, 972 S.W.2d at 192-93 (City of Austin); Lawrence, 906 S.W.2d at 115; Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448, 455 (Tex.Civ.App.-Corpus Christi 1968, writ ref'd n.r.e.); Green v. City of Amarillo, 244 S.W. 241, 242 (Tex.Civ.App.-Amarillo 1922), aff'd on same grounds, 267 S.W. 702, 702 (Tex.Com.App.1924, judgm't adopted); see also Proctor v. Andrews, 972 S.W.2d 729, 734 (Tex.1998) (" 'Municipal corporations [including home-rule cities] are created for the exercise of certain functions of government. ... [I]n so far as their character is governmental, they are agencies of the state, and subject to state control.’ ”) (citation omitted). We also note that the Legislature did not exempt home-rule municipalities when it carried forward the governmental-proprietary distinction in the TTCA. See Tex. Civ. Prac. & Rem.Code Ann. § 101.0215 (Vernon Supp. 2004-2005).

19 .The adopted distinction between which governmental entities constitute the State and which constitute political subdivisions does not, as the dissenting opinion suggests, open “a Pandora’s box of future litigation” over which entities constitute "the State” for purposes of suits like this. The distinction, as set out in this opinion and in the cited cases from the Texas Supreme Court, is no more difficult to apply than in other contexts. Additionally, the dissenting opinion's charge that the Legislature itself would fall outside our definition of "the State” is unsupportable. The Legislature constitutes one of the three constitutional Departments, i.e., branches, comprising our state government and is not merely a governmental agency or board. See Tex. Const, art. Ill, § 1 ("The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled ‘The Legislature of the State of Texas.' "). The Legislature can pass laws with statewide application. Its members are elected from around the State. If ever an entity was considered "the State,” it would be the Legislature. Indeed, the Attorney General is the statewide officer charged with enforcing the Legislature's power in the courts. See Tex. Const, art. IV, § 22 ("He shall ... perform such other duties as may be required by law.”). Such an entity plainly fits within the general definition of "State.” See Monsanto, 865 S.W.2d at 939-40 (setting out ordinary meaning of "the State”); cf. id. ("This interpretation of 'state' comports with the legislature’s ordinary use of the word. State government is defined generally in terms of the executive, legislative, and/or judicial branches, excluding entities with limited jurisdiction.”) (emphasis added).

20 . See San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 282 (Tex.1996) (independent school districts); Williams v. Houston Firemen’s Relief & Ret. Fund, 121 S.W.3d 415, 437 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (municipality); New Caney Indep. Sch. Dist. Bd. of Trs. v. Burnham Auto-Country, Inc., 960 S.W.2d 957, 958 (Tex.App.-Texarkana 1998, no pet.) (school districts); see also Tex. Educ.Code Ann. §§ 11.051-.063, 11.152 (Vernon 1996 & Supp.2004-2005) (school districts); cf. Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon 1997) (including school district as political subdivision for purposes of TTCA).

21 . See Hays County v. Hays County Water Planning P’ship, 106 S.W.3d 349, 358 (Tex.App.-Austin 2003, no pet.) (indicating that partnership plaintiff was community group of property owners); Tex. Mun. Power Agency v. Pub. Util. Com’n, 100 S.W.3d 510, 513 (Tex.App.-Austin 2003, pet. denied) (city and Public Utility Commission as defendants); Tex. Dep't of Transp. v. City of Floresville Elec. Power & Light Sys., 53 S.W.3d 447, 449-50 (Tex.App.-San Antonio 2001, no pet.) (TxDOT as counter-defendant); Denver City Indep. Sch. Dist. v. Moses, 51 S.W.3d 386, 389 (Tex.App.-Amarillo 2001, no pet.) (Texas Education Agency and its commissioner as defendants); Harris County v. Cypress Forest Pub. Util. Dist. of Harris County, 50 S.W.3d 551 (Tex.App.-Houston [14th Dist.] 2001, no pet.).