Waiver of Sovereign Immunity for Tort Liability of Governmental Units
Sections 101.055 and 101.062 of the Texas Civil Practice and Remedies Code provide an independent basis for the City's liability because they waive the City's sovereign immunity.
A waiver of sovereign immunity by the Legislature will not be found unless it is stated in clear and unambiguous language. See Barfield, 898 S.W.2d at 291; Gonzales, 978 S.W.2d at 622. Section 101.021, which bears the specific title "Governmental Liability," is found in Subchapter B of the Act which is generally entitled "Tort Liability of Governmental Units."
Sections 101.055 and 101.062 are found in Subchapter C of the Act which is entitled "Exclusions and Exceptions."
The location of these statutes in the Exclusions and Exceptions portion of the Act rather than in Subchapter B strongly indicates that they are not independent waivers of liability but instead are, as indicated by the title, exclusions and exceptions to liability under Subchapter B.
Our conclusion is supported by comparing the language in Section 101.021 with the language in Sections 101.055 and 101.062 because there is nothing in the latter two sections which may be read as a clear and unambiguous waiver of sovereign immunity.
Whereas Section 101.021 plainly states "[a] governmental unit in the state is liable for . . .," there is no similar language found in either Section 101.055 or Section 101.062 evidencing a clear intent to waive liability independent of Section 101.021. See Bellnoa v. City of Austin, 894 S.W.2d 821, 826 (Tex.App.--Austin 1995, no writ) (comparing Sections 101.021 and 101.0215 and holding that Section 101.0215 does not clearly and unambiguously waive sovereign immunity and is not an independent waiver of immunity; therefore, Section 101.0215 is subject to Section 101.021); McKinney, 814 S.W.2d at 865-66 (holding that Section 101.0215 does not waive immunity and that claims related to governmental function under that section must fall within Section 101.021).
See also Dalon v. City of DeSoto, 852 S.W.2d 530, 535-36 (Tex.App.--Dallas 1992, writ denied) (where negligence claim related to a storm sewer, which is designated as a governmental function by Section 101.0215(a)(9), municipality is immune from liability because property damage did not arise from the operation or use of a motor-driven vehicle or motor-driven equipment as required by Section 101.021(1)(A)).
Further, Section 101.055(2) provides that "this chapter does not apply" to the type of claim described in the section so long as the employee's action is in compliance with laws and ordinances applicable to the emergency action.
When read in context of the Act, we construe this as meaning that the governmental unit will retain its sovereign immunity by virtue of Section 101.055(2) even though waiver of immunity may exist under Section 101.021.
Because we find that Section 101.055(2) is not a clear and unambiguous waiver of immunity, and in fact, provides added protection for a governmental unit, we hold that a claim arising from the action of a governmental unit's employee while responding to an emergency call is subject to Section 101.021.
Similarly, Section 101.062 does not clearly and unambiguously waive the sovereign immunity of a governmental unit.
In fact, Section 101.062, like Section 101.055(2), provides additional protection for a governmental unit because it requires that the plaintiff allege and prove that the action forming the basis of the complaint violates a statute or ordinance. See Fernandez v. City of El Paso, 876 S.W.2d 370, 376 (Tex.App.--El Paso 1993, writ denied) (affirming dismissal of claim under Tort Claims Act where plaintiff failed to allege violation of statutes or ordinances relating to delayed response in emergency action, and therefore, the City of El Paso retained its sovereign immunity).
Therefore, we hold that the City has sovereign immunity in an action involving a claim related to 9-1-1 emergency service only where governmental immunity is waived under Section 101.021 and where the action violates a statute or ordinance.