May 18, 2017
From time to time, my office receives request for consideration related to damages to personal property of citizens in the community. The City of Alpine utilizes the Texas Municipal League’s Insurance Risk Pool (TMLIRP) to handle these types of requests.
Many times a citizen may also be referred back to the Texas Tort Claims Act as part of handling the request. The Texas Legislature came out with the act in 1969 that waived some of what used to be ‘entire sovereign immunity’ for local governments.
Texas Municipal League also put out this article in February 2005 to help identify key pieces of the legislation. I’ve copied the article in it’s entirety for your reading pleasure:
What is the Texas Tort Claims Act?
The Texas Tort Claims Act (“The Act”) is a set of statutes that determine when a
governmental entity may be liable for tortious conduct under state law. Prior to the
adoption of the Act, individuals could not recover damages from state or local
governmental units for injuries resulting from the actions of a government employee or
officer in the performance of a governmental function.
Granting governmental units sovereign immunity serves several purposes. It protects
governmental time and resources from diminishment from private litigation and
encourages forthright action by public officials. It also protects the government from
fraudulent or frivolous suits that otherwise may arise because of the perceived “deep
pockets” of government entities.
In 1969, the Texas Legislature enacted the Texas Tort Claims Act. The Act waived
sovereign immunity for a governmental entity that was engaged in a governmental
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of
an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises
from the operation or use of a motor-driven vehicle or
motor-driven equipment; and
(B) the employee would be personally liable to the
claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of
tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant
according to Texas law.
Tex. Civ. Prac. & Rem. Code § 101.021.
What are the liability limits for governmental units under the Act?
Liability of a municipality under the Act is limited to money damages in a
maximum amount of $250,000 for each person and $500,000 for each single
occurrence for bodily injury or death and $100,000 for each single occurrence
for injury to or destruction of property.
What type of actions are not covered by the Act?
The Act does not limit the liability of a city for damages that result from the
city’s performance of proprietary functions. Even prior to the passage of the Act,
a city could be held liable for the negligent performance of proprietary
functions. Proprietary functions are those functions that a municipality may, in
its discretion, perform in the interest of the inhabitants of the municipality.
Tex. Civ. Prac. & Rem. Code § 101.0215 (b).
Section 101.0215 of the Act specifically lists three activities that are considered
proprietary and 36 activities that are considered governmental functions. The
proprietary functions listed in the statute include the operation and maintenance
of a public utility; the operation of amusements that are owned and operated by
the municipality; and any activity that is abnormally dangerous or “ultrahazardous”.
Tex. Civ. Prac. & Rem. Code § 101.0215 (b). It is important to note
that the list of 36 governmental functions is exclusive, while the list of
proprietary functions is not. This means that, for the purposes of the Act, only
these 36 specifically enumerated activities are considered governmental
functions. Conversely, even though the statute lists three activities as
“proprietary functions”, the reality is that, for the purposes of the Act, any
activity that the city engages in that is not listed as a governmental function is
considered proprietary in nature. If a proprietary function is involved and
liability is established, there is no limit to the amount of damages that may be
I’m still not clear on the difference between “governmental” functions and
Governmental functions are those functions that are imposed on a city by law
and are given to the city by the state, as part of the state’s sovereignty, to be
exercised by the city in the interest of the general public. Governmental
functions involve providing for the health, safety, and welfare of the general
public. Examples of governmental functions include police and fire protection,
health and sanitation services, parks and zoos, zoning and animal control. Tex.
Civ. Prac. & Rem. Code, §101.0215(a).
Proprietary functions are those functions that a city may perform in its
discretion, and the functions are performed to serve the interests of the
inhabitants of the city. Examples of proprietary functions include operation and
maintenance of a public utility or amusements owned and operated by a city.
Tex. Civ. Prac. & Rem. Code, §101.0215(b). Under state law, the distinction
between governmental and proprietary functions is significant because the city’s
liability for governmental functions exists only to the extent that it has been
waived under the Act. However, for proprietary functions, the city is liable to
the same extent as a private entity or individual.
Does the Act provide immunity for individual public officials?
No. The Act does not provide immunity for individual public officials. The Act
addresses immunity only for the governmental entity itself. There are other legal
doctrines that come into play with regard to official immunity. Texas courts
have adopted a doctrine of limited official immunity. In certain cases, it absolves
a public officer or employee from personal liability for acts within the scope of
the officer’s or employee’s governmental authority.
Texas case law provides either absolute immunity or qualified immunity to a
public servant depending on the type of authority retained by that individual. For
example, judges are generally entitled to the defense of absolute or complete
immunity in the exercise of judicial functions. Turner v. Pruitt, 342 S.W.2d 422
The majority of Texas public servants, however, may only assert a defense of
qualified immunity from liability. Qualified immunity provides protection from
liability for discretionary actions taken in good faith within the scope of the
officer’s or employee’s authority. Determination of whether an action was taken
in good faith is a fact issue and a discretionary action involves the exercise of
discretion or judgment.
There is no qualified immunity for ministerial (i.e. mandatory) actions for which
the public servant has no choice. Worsham v. Votgsberger, 129 S.W. 157
(Civ.App. 1919, no writ). For example, the duties of jailers and sheriffs in
receiving and caring for prisoners are usually held to be ministerial, as are those
of animal pound directors. The line between a discretionary duty and a
ministerial one is difficult to draw and competent legal advice should be sought
when liability is at issue.
To what extent are cities liable for the actions of volunteers?
The Texas Tort Claims Act waives sovereign immunity for certain actions of
governmental employees. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (1)
(Vernon 2001). The Act defines an employee as “a person, including an officer
or agent, who is in the paid service of a governmental unit.” Id. § 101.001(1). In
Harris County v. Dillard, the Texas Supreme Court concluded that an unpaid
“volunteer” is not an “employee” for whose acts the governmental unit can be
held liable. 883 S.W.2d 166, 167 (Tex. 1994).
Are cities liable for injuries sustained by volunteers?
To the extent authorized by the Act, cities may be liable to persons, including
volunteers, for property damage, personal injury, and death proximately caused
by the wrongful act, omission or negligence of a city employee, or the condition
or use of personal or real property. Tex. Civ. Prac. & Rem. Code Ann. §101.021
(Vernon 2001). Consequently, cities may want to limit their liability for
negligence by obtaining workers’ compensation coverage for their volunteers.
Cities can opt to cover volunteer fire fighters, police officers, emergency
medical personnel, and “other volunteers” who are named under the cities’
workers compensations coverage. Tex. Lab. Code Ann. §504.012 (Vernon
2001). With limited exceptions, the recovery of workers’ compensation benefits
is the exclusive remedy for the death or work-related injuries of covered
individuals. Id. § 408.001.
Also, many liability policies have a standard exclusion provision denying
coverage for claims arising from injuries to volunteers if the city has purchased
workers’ compensation coverage for employees but not for volunteers. Thus,
cities should consider obtaining workers’ compensation coverage for volunteers.
For more details, please contact the TML Intergovernmental Risk Pool.
Thank you for taking the time to read the article and I also included a hot-link to the actual statue at the beginning of the blog. Information is powerful and certainly helps us all with decision making.
If you have further questions, please reach out to me personally or your elected official.
Have a great day in Alpine,
Erik Zimmer, City Manager