Texas Case Law

MARTINEZ v. CTY SAN ANTONIO, 04-05-00775 CV (Tex.App. [4th
Dist.] 12-6-2006) Desiree MARTINEZ, Appellant v. CITY OF
SAN ANTONIO, Appellee. No. 04-05-00775-CV Court of Appeals
of Texas, Fourth District, San Antonio. Delivered and
Filed: December 6, 2006.

Appeal from the 408th Judicial District Court, Bexar
County, Texas, Trial Court No. 2005-CI-13654, Honorable
Michael P. Peden , Judge Presiding.


Opinion by: KAREN ANGELINI , Justice, Sitting: CATHERINE
, Justice.




This lawsuit arises from the attempted sexual assault of
Desiree Martinez. On July 3, 1997, Richard Diaz, a
thirty-nine-year-old man, called Martinez, a
fourteen-year-old girl, and asked if she would like to go
“have a cold one”, an offer that she accepted. When Diaz
arrived at her house, Martinez gathered her belongings and
told her parents that she was going to a “staff meeting.”
Diaz and Martinez then went to Diaz’s home, stopping only
to purchase alcohol. After several hours of drinking, Diaz
attempted to sexually assault Martinez. Martinez, however,
fought back and fled the house. Martinez reported the attack
to the Kirby Police Department, and Diaz was later
convicted of attempted sexual assault.

In November 2001, Martinez filed a civil lawsuit against
Diaz, Diaz’s business (Richard Diaz and Diana Huron Alonso
d/b/a Diaz and Associates), and the University of Texas
System. In January 2002, Martinez filed an amended
petition, adding the City of San Antonio as a defendant.
According to the amended petition, the City of San Antonio
Police Department was awarded a federal grant to create a
program, administered by the City of San Antonio Office of
Community Initiatives, to curb gang violence. Martinez
alleges that the Office of Community Initiatives, in turn,
received assistance from the Hispanic Research Center at
the University of Texas at San Antonio. According to
Martinez, as part of this initiative to curb gang violence,
she was hired during the summer by the City of San Antonio
and was supervised by Diaz, a convicted sex offender. Thus,
she claims that the City was negligent in hiring Diaz and
in allowing a convicted sex offender to come into contact
with and supervise her, a fourteen-year-old-girl.

In response, the City filed a plea to the jurisdiction, or
alternatively, a traditional and no-evidence motion for
summary judgment. Attached to the City’s plea and motion
was an affidavit by Daniel G. Akeroyd, a lieutenant with
the police department and program director of the Gang
Rehabilitation Assessment and Services Program (“GRAASP”)
in the Youth Crime Services Unit. In his affidavit, Akeroyd
described the program:

GRAASP was a comprehensive, community-wide effort
designed to prevent and suppress gang activity and crime
through various forms of intervention. Key intervention
activities included services for the participant gang
members and their families, including counseling, medical
and psychological assessments, crisis intervention and
job readiness training, as well as community
mobilization strategies. Prior to the formation of GRAASP,
the San Antonio Police Department generally responded to
gang activity and crime with various forms of suppression,
e.g. detention and arrest. With GRAASP, the police
department had access to an array of intervention
strategies, and thereby, different methods of police
protection and services for the purpose of the health,
safety, and welfare, not only for the urban community but
also for the public at large. There were five cities
participating in the grant program.

Akeroyd explained that the program was funded by the U.S.
Department of Justice, Office of Juvenile Justice and
Delinquency Prevention.

Akeroyd also affirmed that neither Martinez nor Diaz
(including his business Diaz & Associates) had ever been
employed by the City or Community Initiatives.[fn1]
Further, the City “was not involved in the screening of
UTSA’s staff for employment.” According to Akeroyd, UTSA’s
role “was to evaluate data pertaining to the GRAASP program
and report on the impact of the program on the community,
crime rates, and the youth.” It was independent from both
the City and the police department “in order to ensure
objective reporting of the results of the GRAASP program.”

Attached to Akeroyd’s affidavit was a true and correct copy
of the grant application. According to the application, the
objectives of GRAASP were to recruit “gang member
participants, with selection based upon probation or parole
status, degree of involvement in gang activity and crime,
residence in the target neighborhood,[fn2] and the severity
of the gang member’s criminal record.” Then, each gang
member participant would be assessed through “an assessment
interview, and when appropriate, an educational,
vocational, medical or psychological assessment.” After
being assessed, GRAASP would develop goals and a case
strategy for each participant. The objective was to have at
least 85% of all participants enroll or participate in
“meaningful activities.” Thus, the objective was for at
least 85% of participants to be employed or seeking
employment, enrolled in school, GED classes, vocational
courses or other forms of education. Each participant would
be monitored for “present criminal activity and arrests in
order to determine an increase or decrease in participant
crime as well as crime in the target neighborhood.” Another
objective of the program was to prevent gang violence by
participating in “neighborhood association meetings, COP
meetings, National Night Out, and neighborhood clean-up
efforts.” The police department was listed as the “lead
agency” and maintained the grant funds for the project.

In its motion, the City argued that Martinez’s claims were
barred because Martinez had not complied with the Texas
Tort Claims Act. In response, Martinez claimed that because
GRAASP is a proprietary function of the City, the Act does
not apply. The trial court agreed with the City and
dismissed Martinez’s claims. It then severed the claims
against the City from the underlying cause. Martinez

Governmental or Proprietary Function?

Sovereign immunity protects the State from lawsuits for
money damages. Reata Constr. Corp. v. City of Dallas, 197
S.W.3d 371, 374 (Tex. 2006). Unless expressly waived, its
political subdivisions, including cities, are also entitled
to such immunity, referred to as governmental immunity. Id.
Sovereign or governmental immunity encompasses immunity
from suit, which bars a suit unless the state has consented,
and immunity from liability, which protects the state from
judgments even if it has consented to the suit. Id.
Immunity from suit deprives a trial court of subject-matter
jurisdiction. Id.

Initially, sovereign immunity was a common-law doctrine
that developed without any legislative or constitutional
enactment. Id. Recognizing that sovereign immunity is a
common-law doctrine, the Texas Supreme Court has “not
foreclosed the possibility that the judiciary may modify or
abrogate such immunity by modifying the common law.” Id. at
375. As such, the judiciary remains responsible for
defining “the boundaries of the common-law doctrine and . .
. determin[ing] under what circumstances sovereign immunity
exists in the first instance.” Id. However, despite this
responsibility, the supreme court has “generally deferred to
the Legislature to waive immunity because the Legislature
is better suited to address the conflicting policy issues
involved.” Id.

One such legislative waiver of immunity is the Texas Tort
Claims Act. See Tex. Civ. Prac. & Rem. Code Ann.
101.001-.109 (Vernon 2005 & Supp. 2006). When a
municipality commits a tort while engaged in a governmental
function, its liability is determined by the provisions of
the Texas Tort Claims Act. See id. 101.0215(a) (Vernon
2005); Tex. River Barges v. City of San Antonio, 21 S.W.3d
347, 356 (Tex.App.-San Antonio 2000, pet. denied). Here,
the City, in its plea to the jurisdiction and motion for
summary judgment, argued that Martinez’s claims were barred
because Martinez did not comply with the Texas Tort Claims
Act.[fn4] In response and now on appeal, Martinez argues
that the Texas Tort Claims Act does not apply because the
City was performing a proprietary function, not a
governmental one. Thus, we must consider whether GRAASP was
a governmental or proprietary function of the City.

When a municipality commits a tort while engaged in a
proprietary function, it is liable to the same extent as a
private entity or individual. See Dilley v. City of
Houston, 148 Tex. 191, 222 S.W.2d 992, 993 (1949); see also
Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006) (“A
municipality is not immune from suit for torts committed in
the performance of its proprietary functions, as it is for
torts committed in the performance of its governmental
functions.”). Under common law, “generally speaking, a
municipality’s proprietary functions are those conducted in
its private capacity, for the benefit of those within its
corporate limits, and not as an arm of the government.”
Tooke, 197 S.W.3d at 343 (quotation omitted). In contrast,
“governmental functions are in the performance of purely
governmental matters solely for the public benefit.” Id.
(quotation omitted).

However, a court need not consider classification of an
activity under common law if the activity is defined by
statute. As the Texas Supreme Court has recently explained,
the “Texas Constitution authorizes the Legislature to
`define for all purposes those functions of a municipality
that are to be considered governmental and those that are
proprietary, including reclassifying a function’s
classification assigned under prior statute or common
law.'”[fn5] Id. (quoting Tex. Const. art. XI, § 13).

In enacting the Texas Tort Claims Act, the Legislature
defined proprietary functions as “those functions that a
municipality may, in its discretion, perform in the
interest of the inhabitants of the municipality.”[fn6] Tex.
Civ. Prac. & Rem. Code Ann. § 101.0215(b) (Vernon
2005). For purposes of tort liability, the Legislature
defined governmental functions as “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.”
Id. § 101.0215(a). It included the following among a
municipality’s governmental functions: “police . . .
protection and control”; and “community, neighborhood, or
senior citizen centers.” Id. § 101.0215(a)(1), (17).
The City argues that GRAASP is included within these
definitions of governmental functions.[fn7] Martinez, on
the other hand, points to the common-law definition and
argues that GRAASP was created for the benefit of those
within its corporate limits, and not as an arm of the

In considering whether GRAASP is a governmental or
proprietary function, we note that a plaintiff may not
“split various aspects of [a municipality’s] operation into
discrete functions and recharacterize certain of those
functions as proprietary.” City of San Antonio v. Butler,
131 S.W.3d 170, 178 (Tex.App.-San Antonio 2004, pet.
denied). As such, Martinez cannot point to part of GRAASP’s
activities and argue that GRAASP was a proprietary function
of the City. Instead, we must consider GRAASP as a whole.

Although not a pure “arrest and incarcerate” method of law
enforcement, GRAASP was nevertheless a function of law
enforcement and a valid governmental use of police power.
See Tex. Civ. Prac. & Rem. Code Ann. §
101.0215(a)(1) (Vernon 2005) (listing police protection and
control as a governmental function). The objective of the
program was to intervene in the lives of gang members,
thereby reducing gang violence and crime in the City. It
was a crime prevention and reduction program, implemented
and administered by the police department, funded by the
Department of Justice, and it benefitted the general public.
That it also provided counseling services and job training
does not transform it into a proprietary function. See
Butler, 131 S.W.3d at 178 (explaining that the various
aspects of a municipality’s operation cannot be split into
discrete functions and then recharacterized as proprietary).
We hold that GRAASP is a governmental function under
section 101.0215(a)(1) of the Texas Tort Claims Act, a
function of the City’s police protection and control. And,
because we have held that GRAASP falls within the Texas
Tort Claims Act’s definition of governmental function, we
need not consider Martinez’s argument that GRAASP would not
be a governmental function under common law. See Tooke, 197
S.W.3d at 343-44 (determining that the services provided by
the appellant were included within section 101.0215(a)’s
list of governmental functions and seeing “no reason to
think that the classification would be different under the
common law”).


Because GRAASP is a governmental function under the Texas
Tort Claims Act, in order to bring suit, Martinez was
required to follow the provisions of the Act. Martinez,
however, admits that she did not comply with the Act’s
notice provision. As such, the trial court did not err in
dismissing Martinez’s claims against the City.[fn8]

Desiree Martinez appeals from the trial court’s order
granting the City of San Antonio’s plea to the
jurisdiction, motion for no-evidence summary judgment, and
traditional motion for summary judgment. We affirm.

[fn1] In response to Martinez’s allegation in her petition,
Akeroyd also affirmed that Community Initiatives did not
administer GRAASP, and even if it had, Community
Initiatives never employed Martinez.

[fn2] Certain neighborhoods in San Antonio with high levels
of gang activity were specifically targeted by the program.

[fn3] After the trial court granted the City’s summary
judgment and severed the cause, Martinez took a post-answer
default judgment against Diaz and nonsuited the remaining

[fn4] Pursuant to the Texas Tort Claims Act, a plaintiff
must give a governmental unit notice of a claim no later
than six months after the day the event giving rise to the
claim occurs unless the governmental unit had actual notice
of the event. See Tex. Civ. Prac. & Rem. Code Ann. §
101.101 (Vernon 2005). On appeal, Martinez acknowledges that
if the Texas Tort Claims Act applies, “she did not meet the
requirements of the Act, and the relief she seeks on appeal
should be denied.”

[fn5] Thus, in Tooke v. City of Mexia, 197 S.W.3d 325,
343-44 (Tex. 2006), the supreme court held that because the
Legislature has statutorily defined “garbage and solid
waste removal, collection, and disposal” as a governmental
function in the Texas Tort Claims Act and because that
definition described the services one of the parties had
agreed to provide, the court saw “no reason to think that
the classification would be different under the common

[fn6] The Legislature listed the following examples as
proprietary functions: “the operation and maintenance of a
public utility”; “amusements owned and operated by the
municipality”; “any activity that is abnormally dangerous
or ultrahazardous.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.0215 (b) (Vernon 2005).

[fn7] In its brief, the City also argues that pursuant to
section 101.0215(a)(34) of the Texas Tort Claims Act,
GRAASP should be considered a “community development or
urban renewal activities undertaken by municipalities and
authorized under Chapters 373 and 374, Local Government
Code.” However, the City does not point to anything in the
record reflecting that GRAASP was a program authorized
under Chapters 373 and 374 of the Local Government Code.
See Tex. Loc. Gov’t Code Ann. § 373.005(a) (Vernon
2005) (“To conduct work or activities . . ., a municipality
may adopt a community development program by ordinance or
resolution.”); id. § 374.011 (providing that before
municipality may exercise power under chapter 374’s Urban
Renewal, it must adopt a resolution and hold an election).

[fn8] Having determined that Martinez did not comply with
the Act’s notice provision, we need not consider the other
issues presented.