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Extent of Liability for Texas Cities Depends on Whether Functions Are Governmental or Proprietary

A question that often comes up for municipalities all over the state is whether they can be held liable for actions taken as a governmental entity. At one time in our history this was technically true, but in 1969, Texas enacted what is now known as the Texas Tort Claims Act. Prior to the enactment of the Act, a governmental entity in Texas could not be held liable for damages that resulted from an action that is considered a governmental function. The enactment of the Texas Tort Claims Act changed this archaic law by waiving governmental immunity for acts that are considered governmental functions, as that term is defined by the Act.

The Texas Tort Claims Act can be found under Chapter 101 of the Texas Civil Practices and Remedies Code. Section 101.0215(a) of the Act, titled “LIABILITY OF A MUNICIPALITY,” provides that “A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that 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,…”

This section goes on to provide a long list of items that are considered to be “governmental functions” under the Act. This list of governmental functions includes police and fire protection and control, health and sanitation services, street construction and design, bridge construction and maintenance and street maintenance, and many other items that public officials and employees should be aware of.

A common issue many public officials and employees run into when faced with a liability question is trying to determine whether the action taken by the municipality is really a proprietary function that just appears to be a governmental function. This is important because the Tort Claims Act does not apply to proprietary functions. This means that municipalities performing proprietary functions are liable on the same basis and under the same conditions as private entities.

Section 101.0215(b) of the act says a proprietary function is a “function that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality, including but not limited to: (1) the operation and maintenance of a public utility; (2) amusements owned and operated by the municipality; and (3)  any activity that is abnormally dangerous or ultrahazardous.” Further, Subsection (c) of section 101.0215 states that proprietary functions do not include the activities listed as governmental functions under subsection (a).

It is crucial that all city officials and city employees know the difference between a governmental function and a proprietary function to better understand how governmental immunity works in Texas. If the municipality is facing potential liability for damages that are the result of an incident involving one of the items listed under Section 101.0215(a) of the Act, then they may have waived their immunity to the extent set out in the Act. However, if the incident arises from a proprietary function, then the municipality will be held liable just as if they were a private entity.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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