Municipal-owned water utility not entitled to TTCA notice separate from City says 4th Court of Appeals.

San Antonio Water System v. Beatriz Smith, 04-13-00898-CV (Tex. App. – San Antonio, September 24, 2014).

This is an interlocutory appeal in a premise liability case under the Texas Tort Claims Act. The Fourth Court of Appeals affirmed the denial of the plea to the jurisdiction filed by the San Antonio Water System (“SAWS”) alleging a lack of notice of the claim within the statutory time period.

Beatriz Smith sued the San Antonio Water System (SAWS) for injuries she sustained when she fell into a manhole on a sidewalk in front of a church. The City of San Antonio Fire Department responded, along with other entity responders and the incident reports noted Smith had fallen due to an uncovered manhole and possibly broken her arm.  SAWS personnel were called to repair the missing cover. Smith’s attorney sent a notice of claim letter to the City and to CPS Energy pursuant to the Texas Tort Claims Act but did not provide one to SAWS. When Smith sued, she sued the City, CPS, SAWS and the church. SAWS filed a plea to the jurisdiction asserting it did not receive the statutory notice provision which the trial court denied.

The court first analyzed whether SAWS is a separate “governmental unit” entitled to its own statutory notice separate and apart from the City of San Antonio. The City of San Antonio purchased its waterworks system from a private entity in 1925. Pursuant to city control and management of the system was placed in the hands of a newly created Water Works Board of Trustees. However, the court cited other lawsuits in which SAWS asserted it was part of the City and therefore entitled to tax exempt treatment and was a “special agency” of the City. Citing the most recent ordinance controlling SAWS operations (which also consolidated the City’s sanitary sewer and water reuse system) it defined SAWS as an “agency of the City.”  While the ordinance placed management of SAWS into the hands of the Board of Trustees, it did not transfer ownership or assets to the Board. Importantly, the court determined that SAWS creation is derived from City ordinance only and not the Constitution. It is therefore not a “governmental unit” separate from the City and is not entitled to independent notice under the Texas Tort Claims Act. A fact question exists as to whether the City had actual notice of the claim (on its own and by-and-through notice to CPS, another agency of the City) and therefore the trial court properly denied the plea. [Comment: Seems like a “have your cake and eat it too” flaw to me.  If SAWS is not a separate entity from the City entitled to its own notice, then it should not be considered a separate jural entity which can be sued in its own right. You cannot sue the San Antonio Police Department on its own, you sue the City for acts of the PD. Why can you sue SAWS and attribute liability to it, without providing its own notice? That seems contrary to the purpose of requiring the notice under §101.101 in the first place.]

If you would like to read this opinion click here. Panel: Justice Angelini, Justice Martinez and Justice Chapa.  Opinion by Justice Chapa. The attorney listed for the City is Judith D. Sanchez.  The attorneys listed for SAWS are Clarissa Rodriguez and Patrick C. Bernal. The attorney listed for Beatriz is Paul E. Campolo.  The attorney listed for the Church at San Antonio is Matthew Swanter.