”Governmental Functions” Legal Definition

Generally speaking, Texas courts have defined governmental functions as 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.'" Bailey v. City of Austin, 972 S.W.2d 180, 193 (Tex. App.--Austin 1998, pet. denied) (citing Gates v. City of Dallas, 704 S.W.2d 737, 738 (Tex. 1986) (quoting City of Crystal City v. Crystal City Country Club, 486 S.W.2d 887, 889 (Tex. Civ. App.--Beaumont 1972, writ ref'd n.r.e.)).

By contrast, "a proprietary function is one performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the municipality rather than for use by the general public." Bailey, 972 S.W.2d at 193 (citing City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987)).

In that regard, actions "undertaken for the benefit of private enterprise or the residents of the municipality rather than for the benefit of the general public" are deemed proprietary. See Houston v. Southwest Concrete, 835 S.W.2d 728, 731 (Tex. App.--Houston 14th Dist. 1992).

As we have noted, the "mere fact that a program or project is undertaken for the public health, safety, welfare or morals of the citizenry does not alone deem the action to be governmental rather than proprietary." Southwest Concrete, 835 S.W.2d at 732-33.

The Texas Legislature has further defined "governmental functions" as those which 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." TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a).

"Enjoined," in this context, means "to order, to require, to command, to urge or impose with authority, or positively direct. " Josephine E. Abercrombie Interests, Inc. v. City of Houston, 830 S.W.2d 305, 308-09 (Tex. App.--Corpus Christi 1992, writ denied) (citing BLACK'S LAW DICTIONARY 276 (5th ed. 1979); WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY 604 (2d ed. 1979));

See also BRYAN A. GARNER, a DICTIONARY OF MODERN LEGAL USAGE 316 (2d ed. 1995) ("Enjoined," as used by the legislature, means "to prescribe, to mandate, or to order that something be done.").

The legislature set out to define governmental acts to "supersede a series of Texas Supreme Court decisions which categorized a municipality's functions as either proprietary or governmental." Southwest Concrete, 835 S.W.2d at 730 (discussing Texas Civil Practice and Remedies Code sections 101.0215(a) and (b), which set out non-exclusive lists of activities which are either governmental or proprietary).

Examples of enumerated governmental functions include: "police and fire protection and control"; "health and sanitation services"; "garbage and solid waste removal, collection, and disposal"; "building codes and inspection"; "zoning, planning, and plat approval"; and "water and sewer service." TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a) (1), (2), (6), (28), (29), and (32).

On the other hand, proprietary functions are defined as those which a "municipality may, in its discretion, perform in the interest of the inhabitants of the municipality . . . . " Id. at § 101.0215(b).