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Galveston Racquet Club7/7/2005
In this appeal, Galveston Racquet Club, Inc. (the Club), contends that the trial court erred by granting a plea to the jurisdiction in favor of appellee, the City of Galveston (the City). The Club asserts that the City's governmental immunity from suit was waived under the Tort Claims Act because the property damage it sustained arose "from the operation or use of . . . motor-driven equipment." See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(1)(A); 101.0215(a)(11), (32); 101.025 (Vernon 2005). The parties do not dispute that the water pumps may constitute motor-driven equipment under the Tort Claims Act. See Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). Their disagreement concerns the narrow question whether the pleadings demonstrate that the damage arose "from the operation or use of . . . motor-driven equipment," i.e. whether there is a nexus between the operation or use of the water pump and the alleged damage to the Club's property caused by water that leaked through the broken water pipes. We affirm the trial court's order granting the City's plea to the jurisdiction.
Factual and Procedural Background
The Club's First Amended Original Petition alleged that in August 2001, the ground beneath its tennis courts and parking lot caved in due to water that leaked from "deteriorated," "unmaintained," and "worn out" water lines that ran beneath its property. The petition asserted that these water lines leaked because the City used motor-driven pumps to pressurize water into these water lines, and "subject[ed the lines] to substantial, continuous, pump-driven water flow." In its plea to the jurisdiction, the City asserted that the Club failed to demonstrate a nexus between the use or operation of the water pumps and the cavitation of the ground that caused the property damage. The City contends that the water pumps did no more than furnish the condition that made the alleged property damage possible.
Waiver of Governmental Immunity
In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's subject-matter jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine whether the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Id. (quoting White, 46 S.W.3d at 868). " f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend." County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Because immunity from suit defeats a trial court's subject-matter jurisdiction, immunity from suit may properly be asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225--26 (Tex. 2004).
We review a trial court's ruling on a jurisdictional plea de novo, construing the pleadings in the plaintiff's favor and looking to the pleader's intent. Id. at 226; Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Whether the pleader has alleged facts that affirmatively demonstrate subject-matter jurisdiction is a legal question that we review de novo. Miranda, 133 S.W.3d at 226.
Because waterworks, and water and sewer services are governmental functions, the City, a governmental unit, is generally immune from liability for the Club's damages unless that immunity has been waived by the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021; 101.021(1)(A); 101.0215(a)(11), (32); 101.025
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