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City of Weslaco v. Theobald10/27/2005
Before Chief Justice Valdez and Justices Castillo and Garza
Appellant, City of Weslaco, brings an interlocutory appeal of the trial court's denial of its plea to the jurisdiction in a case brought by appellee, Robert Theobold. In one issue, the City argues that the trial court erred in denying its plea to the jurisdiction because it enjoys immunity from this suit under the Texas Tort Claims Act. We affirm.
Background
This dispute arose when the City of Weslaco, without Theobold's knowledge or permission, removed a sewer line on a vacant lot owned by Theobold and adjacent to his residence. The City hired J.M. Construction to remove the line. J.M. Construction, which is owned by Juan Mendoza, used motor-driven trenchers and backhoes to accomplish the removal. When the line was removed, J.M. Construction left an open "stub" which, according to Theobold's petition, allowed sewage to accumulate on his property. A trench left open after the removal also began to fill with liquid sewage.
Theobold alleges that the removal of the line on the vacant lot left his residence without sewer service, and that when he complained to the City, the City responded by hiring Mike's Plumbing, a company owned by Mike Hinojosa. Mike's Plumbing then reconnected Theobold's home to another sewer line, again using motor-driven trenchers, backhoes and other equipment. According to Theobold's petition, Mike's Plumbing, while reconnecting the home to the sewer system, cut through the foundation of Theobold's home and caused damage. The City allegedly promised Theobold that the damage would be repaired, but it was not. Theobold asserts that these problems have caused his home to become substantially contaminated with mold.
Theobold sued the City for his damages. The City responded by filing a plea to the jurisdiction asserting that it was immune from Theobold's suit. The trial court denied the plea which the City appeals to our Court in one issue: the trial court erred in denying the City's plea to the jurisdiction because Theobold has failed to establish that the City waived its immunity. Specifically, the City alleges that Theobold failed to establish that J.M. Construction and Mike's Plumbing were "employees" of the City when they performed the tasks related to the removal and reconnection of Theobold's sewer lines.
Plea to the Jurisdiction
A party may submit a plea to the jurisdiction in order to assert that it enjoys sovereign immunity from suit and therefore is not properly within the subject matter jurisdiction of the trial court. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). The limits of the trial court's subject matter jurisdiction is a question of law and subject to de novo review by the appellate court. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2000). In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if 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." Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). The court of appeals may look beyond the pleadings in this de novo review and evaluate the jurisdictional evidence submitted by both parties. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The court must also take the plaintiff's pleadings as true when evaluating them for purposes of jurisdiction and must construe the
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