Town of Highland Park v. Tiffany Renee McCullers, Individually and for the Benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, And Sonya Hoskins

CONCUR and Opinion Filed June 29, 2021

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01431-CV

TOWN OF HIGHLAND PARK, Appellant
V.
TIFFANY RENEE MCCULLERS, ET AL., Appellee

On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-08709

CONCURRING OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
Opinion by Justice Goldstein
The facts of this case are heart-wrenching, but the legal issues discrete. For us

to affirm the order of the trial court, we would have to overrule legislative

enactments and Texas Supreme Court precedent, neither of which we are authorized

to do. Because the law requires us to hold that the Town is immune under the facts

as presented, I concur with the Majority Opinion. I write separately to address the

governmental–proprietary function dichotomy as it applies to Appellees’ first

negligence claim.
 I. BACKGROUND

In their live pleading, Appellees asserted three causes of action against the

Town: two counts of negligence and one count of premises liability. Their first count

of negligence pertains to the Town’s policy of coordinating “private security guard

services” (the “coordination claim”). Appellees pled, and argue before this Court,

that such coordination was a proprietary function, thus exempting their first

negligence claim from the TTCA. For its part, the Town characterizes its policy as

“coordination of off-duty law enforcement services.” The Town argues that this

coordination falls under its governmental function of police protection and control,

which is expressly listed as a governmental function in the TTCA.

The question presented here is whether the coordination of off-duty officers

falls under the TTCA’s enumerated function of “police . . . protection and control.”1

1
We may not need to reach this question. Appellees’ coordination claim alleges that the Town was
negligent “by failing to warn [Officer McCullers] of the unreasonable risk of flash flooding at the Property,
and by failing to provide any post orders and/or instructions to [Officer McCullers] to seek shelter during
rainfall events.” On the face of these pleadings, it is unclear whether Officer McCullers’s death “arose
from” the Town’s coordination of off-duty personnel, as required by the TTCA. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.0215(a) (“A municipality is liable under this chapter for damages arising from its
governmental functions . . . .” (emphasis added)). The supreme court has held that in the context of the
TTCA, the phrase “arises from” requires a showing that the government action was a cause in fact of the
plaintiff’s injury. See Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 928 (Tex. 2015).
Thus, for example, when a condition or use of property “merely furnishes a circumstance ‘that makes the
injury possible,’ the condition or use is not a substantial factor in causing the injury” and therefore not a
cause in fact of same. See City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016).
Here, the evidence appears to show that the Town’s coordination of off-duty officers did not cause, but
rather merely supplied one of the conditions—the physical presence of Officer McCullers on private
property that flooded—which resulted in his tragic death. Accordingly, the governmental–proprietary
dichotomy would not apply to the coordination claim.
Because this issue implicates jurisdiction, it may be raised at any time, and we can request that the
parties supplement their briefs to address it. See Temple v. City of Houston, 189 S.W.3d 816, 819 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). However, we need not reach the “arises from” issue here, because

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If we resolve this issue in Appellees’ favor, the coordination claim would survive

even if Appellees’ other claims were subject to dismissal. That is because a Texas

municipality enjoys no immunity for claims arising out of its proprietary functions.

Conversely, if we resolve this issue in the Town’s favor, the coordination claim is

subject to the same immunity analysis as Appellees’ other claims.2

In our de novo review, we must address a plea to the jurisdiction on a claim-

by-claim basis when necessary to resolve discrete jurisdictional issues. See Thomas

v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (explaining that a trial court may

appropriately dismiss the claims over which it lacks subject matter jurisdiction,

while retaining the claims over which it has jurisdiction). Because the

governmental–proprietary dichotomy determines how we must treat Appellees’

coordination claim, I address it separately.

the briefs submitted by the parties allow us to adequately dispose of the parties’ issues without supplemental
briefing.
2
I concur with the Majority that Appellees failed to provide timely written formal notice of their claim
in accordance with Section 101.101(a) of the Texas Tort Claims Act (“TTCA”), and that the Town had no
actual notice through actual, subjective awareness of its alleged fault producing or contributing to the death.
I agree that this Court is neither in a position to disagree with the supreme court’s holding in Cathey v.
Booth and its progeny, nor tread where the Texas Legislature has not gone in over two decades. See Cathey
v. Booth, 900 S.W.2d 339, 340 (Tex. 1995); see also Worsdale v. City of Killeen, 578 S.W.3d 57 (Tex.
2019) (declining to overturn Cathey); City of San Antonio v. Tenorio, 543 S.W.3d 772 (Tex. 2018) (same);
City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex. 2010) (citing Cathey for the proposition that Section
101.101(c) requires a city to have “subjective awareness of its fault” in order to avoid the notice requirement
of Section 101.101(a)).
Without formal written or actual notice, the jurisdictional pre-requisites to suit are not satisfied to
establish the limited waiver of governmental immunity under the TTCA, thus precluding all of Appellees’
tort claims against the Town. To avoid the harsh consequences of lack of notice, Appellees argue that the
Town’s coordination of off-duty police officers providing security services falls outside of the TTCA
because negligence in coordination of private security services is a proprietary function.
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 II. DISCUSSION

“Sovereign immunity and its counterpart, governmental immunity, exist to

protect the State and its political subdivisions from lawsuits and liability from money

damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.

2008). Under the common-law doctrine of sovereign immunity, the State cannot be

sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.

2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). Like

sovereign immunity, governmental immunity affords similar protection to

subdivisions of the State, including counties, cities, and school districts. Harris Cty.

v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); LTTS Charter Sch., Inc. v. Palasota, 362

S.W.3d 202, 208 (Tex. App.—Dallas 2012, no pet.); see also TEX. CIV. PRAC. &

REM. CODE ANN. § 101.001(3)(B) (defining “governmental unit” to include cities).

Governmental immunity has two components: (1) immunity from liability,

which bars enforcement of a judgment against a governmental entity; and

(2) immunity from suit, which bars suit against the entity altogether. Tooke, 197

S.W.3d at 332. Immunity from suit deprives the court of subject-matter jurisdiction

and is properly raised in a plea to the jurisdiction, whereas immunity from liability

is asserted as an affirmative defense. See Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 224 (Tex. 2004); see also Palasota, 362 S.W.3d at 208. “Immunity

from suit bars a suit against the State unless the Legislature expressly consents to the

suit.” Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

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2002). “If the Legislature has not expressly waived immunity from suit, the State

retains such immunity even if its liability is not disputed.” Id. “Immunity from

liability protects the State from money judgments even if the Legislature has

expressly given consent to sue.” Id.

A. Governmental–Proprietary Dichotomy

The Town’s fourth issue on appeal relates to Appellees’ coordination claim.

The Town contends that its coordination of off-duty law enforcement services is a

governmental function under the TTCA. Appellees counter that such coordination is

proprietary and thus exempt from immunity protections afforded under the TTCA.

A city’s immunity from tort-based suits depends on whether its actions are

characterized as governmental or proprietary functions. Tooke, 197 S.W.3d at 343.

At common law, this determination was made by the courts. See id. In 1987,

however, the People approved a constitutional amendment “to allow the Legislature

to classify the functions of a municipality that are to be considered governmental

and those that are proprietary.” Williams v. City of Midland, 932 S.W.2d 679, 682–

83 (Tex. App.—El Paso 1996, no writ) (citing TEX. CONST. art. XI, § 13). Under that

authority, the Legislature amended the TTCA to classify a number of municipal

functions as governmental. See id. As amended, the TTCA initially enumerated

“thirty-three[3] municipal functions defined as governmental and included not only

3
The number of enumerated governmental functions is now thirty-six. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.0215(a).
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long held governmental functions such as police and fire protection, and sanitary and

storm sewers, but such traditional proprietary functions as the operations of

cemeteries, waterworks, and street construction and design.” See id. at 683 (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)).

Section 101.0215(a) of the TTCA defines governmental functions as those

“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 . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a). Subsection

(a) further provides a non-exhaustive list of thirty-six individual functions that it

deems governmental. In Subsection (b), the TTCA defines proprietary functions as

those that a municipality “may, in its discretion, perform in the interest of the

inhabitants of the municipality . . . .” See id. § 101.0215(b).

Subsection (c) further provides: “The proprietary functions of a municipality

do not include those governmental activities listed under Subsection (a).” Id.

§ 101.0215(c). In other words, Subsection (c) operates as a savings clause—if the

function appears on the enumerated list under Subsection (a), it is classified as

governmental irrespective of whether the city is performing the function in the

interest of the general public or its own inhabitants, and irrespective of whether the

function is enjoined on the city by law or one it may perform in its discretion. “If the

City’s actions are listed as a governmental function in the TTCA, we have no

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discretion, regardless of the City’s motives, to declare the actions as proprietary.”

City of Plano v. Homoky, 294 S.W.3d 809, 814 (Tex. App.—Dallas 2009, no pet.).

Thus, in determining whether a city’s actions are proprietary or governmental,

we must first consider whether the action falls within one of the enumerated

functions in Subsection (a).4 In making that decision, we do not “split various aspects

of a city’s operation into discrete functions and recharacterize certain of those

functions as proprietary.” Id. at 815. In Homoky, for example, we held that the

operation of a municipal golf course falls within the Act’s enumerated governmental

functions of “parks and zoos” or “recreational facilities.” See id. at 814–15 (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(13), (23)). In so holding, we

rejected Homoky’s argument that, even if the operation of the golf course is

governmental, the operation of the clubhouse, where his injuries occurred, is

proprietary. See id. at 815. We explained that “[n]othing in the evidence shows the

golf course, clubhouse, and restaurant are anything but interrelated.” Id. As such, we

held, “[t]he dichotomy of governmental and proprietary functions proposed by

Homoky ignores the parties’ evidence and impermissibly dissects the City’s

operation.” Id.

4
If a governmental function does not appear on either the list of governmental functions in Subsection
(a) or the list of proprietary functions under Subsection (b), we must determine whether the function is
governmental or proprietary pursuant to the TTCA’s definitions. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.0215(a), (b); see also City of Carrollton v. Weir Bros. Contracting, LLC, No. 05-20-00714-CV, 2021
WL 1084554, at *3 (Tex. App.—Dallas Mar. 22, 2021, no pet. h.) (mem. op.) (“If a function is not
designated as either governmental or proprietary, we apply the section’s general definitions to determine
the nature of the activity.”).
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B. Application of Law to Facts

The relevant facts of this case are not disputed. The legal implication of those

facts under the TTCA is the crux of this dispute. Although the parties focus their

arguments on Officer McCullers’s status as “a private security guard” or a “licensed

peace officer,” that distinction misses the mark. Our task is to determine whether the

Town was engaged in proprietary or governmental functions. Thus, our focus should

be on the Town’s off-duty officer employment policy and the singular, challenged

activity thereunder—the coordination of private security services provided by off-

duty officers. Officer McCullers’s status is relevant only to the extent it helps resolve

whether the Town’s policy falls under the umbrella of police protection and control.

The Town’s police department has an off-duty employment policy for its

peace officers that encompasses more than the coordination of private security

services at issue here. When private residents request off-duty services, the Town

sends out requests to Town-employed officers who could fulfill that role. If any

officer responds that they are available for the job, the Town facilitates the

introduction of the officer with the resident. If no Town-employed officer is

available, the off-duty opportunity may be offered to another law enforcement

agency’s officer, such as in the case of Officer McCullers. Internally, the police

department classifies off-duty employment as either Police Related Employment or

Non-Police Related Employment. The coordination of off-duty private security

services provided to residents, and that being performed by Officer McCullers, is

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classified by the department as police related. Non-police related employment

includes activities such as janitorial services. All off-duty employment must be

approved by the Police Chief or his designee. The department coordinates this off-

duty security service only with licensed peace officers.

Texas courts have consistently held that when a city’s police activities are

aimed at crime prevention, such activities are necessarily governmental. See

Martinez v. City of San Antonio, 220 S.W.3d 10, 15–16 (Tex. App.—San Antonio

2006, no pet.) (“Although not a pure ‘arrest and incarcerate’ method of law

enforcement,” a city program aimed at suppressing gang activity through counseling,

medical assessments, and job training was nevertheless governmental as a “crime

prevention and reduction program”); City of El Paso v. Gomez-Parra, 198 S.W.3d

364, 369 (Tex. App.—El Paso 2006, no pet.) (holding that police activity of seizing

and auctioning vehicles used in drug transportation is governmental due to statutory

mandate that such vehicles are subject to forfeiture and proceeds of such sales are to

be used for law enforcement purposes).

Unquestionably, police protection includes preservation and protection of the

peace, of persons, and of property. See TEX. CODE CRIM. PROC. arts. 6.05 & .06.

Police protection and control involves numerous policy making decisions, how to

provide police protection and control or not to provide such protection, such as the

number of officers, and the assignment of officers to particular duties or functions.

See, e.g., Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 397 (Tex. App.—

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Dallas 1998, no pet.) (“[T]he government is immune from liability if the negligence

that causes injury lies in the formulation of policy, such as whether and how to

provide police protection, but the government might be liable if an officer acts

negligently in carrying out that policy. This provision was intended to avoid judicial

review of the discretionary policy decisions that governments must make in deciding

how much, if any, police or fire protection to provide for a community.”).

Appellees contend that the Town engaged in a proprietary function when it

coordinated the hiring of Officer McCullers to provide private security services at

the property. Appellees point to the TTCA’s definition of proprietary functions as

those that a “municipality may, in its discretion, perform in the interest of the

inhabitants of the municipality.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.0215(b). Because Officer McCullers was acting on behalf of a private party,

and because his role ostensibly could have been performed by a private security

guard, Appellees argue that the Town’s coordination of his services was proprietary.

This argument fails for three reasons.

First, Appellees ignore Subsection (c), the saving clause of Section 101.0215.

After defining governmental and proprietary functions, and providing examples of

each, the TTCA expressly states: “The proprietary functions of a municipality do not

include those governmental activities listed under Subsection (a).” Id. § 101.0215(c).

As such, it is immaterial whether the Town’s policy benefited only its inhabitants.

As we have said, “[i]f the City’s actions are listed as a governmental function in the

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TTCA, we have no discretion, regardless of the City’s motives, to declare the actions

as proprietary.” Homoky, 294 S.W.3d at 814.

Second, both the Texas Supreme Court and this Court have rejected an

argument identical to the one Appellees advance in this case. In Guillory v. Port of

Houston Authority, Guillory, a privately employed longshoreman, leased a truck

from the Port of Houston Authority. 845 S.W.2d 812 (Tex. 1993). After an accident

involving the truck, Guillory sued his employer and the Port Authority, alleging

against the latter that the truck was defective. See id. On appeal, Guillory argued that

the governmental–proprietary dichotomy should be extended to all subdivisions of

the State. See id. at 814. He further argued: “If an activity could be conducted by a

private entity . . ., a governmental entity should not be immune from liability for

conducting the same activity.” Id. The Texas Supreme Court rejected both

arguments and, as relevant here, explained:

If we accepted Guillory’s definition of proprietary activities to include
anything a private entity could do, the waiver would be expansive.
Private entities can provide police and fire protection, operate prisons,
and adjudicate disputes, activities which are also governmental; there
are few activities indeed which are uniquely governmental. To waive
immunity for all others would virtually vitiate immunity entirely. Even
if the proposed waiver were narrower, however, it remains a matter for
the Legislature, as we have consistently held.

Id.

We similarly rejected the argument in Homoky. There, the plaintiff argued that

“the act of placing boards and planters on the floor” of a golf course clubhouse is

discretionary “because such acts ‘could be performed by a private subcontractor.’”
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See Homoky, 294 S.W.3d at 815 n.1. We explained, however, that the defendant city

had “discretion to perform or not perform many activities in connection with its

government functions [and n]either that discretion nor the existence of a profit

motive reclassifies one aspect of a government function into proprietary conduct.”

Id. (citing City of San Antonio v. Butler, 131 S.W.3d 170, 178 (Tex. App.—San

Antonio 2004, pet. denied)). For the reasons stated in Guillory and Homoky, we must

reject Appellees’ invitation to classify the Town’s coordination of off-duty peace

officers to provide security services as proprietary merely because it is a service that

private parties can provide.

Finally, Appellees’ argument fails because it impermissibly dissects the

Town’s coordination of off-duty security services from the Town’s provision of

police services overall and oversight under an umbrella Off-Duty Employment

Policy. Appellees do not challenge the Off-Duty Employment Policy, other services

provided thereunder, or the departmental classification of off-duty employment as

Police Related or Non-Police Related. Rather, Appellees segregate for scrutiny one

discrete off-duty employment opportunity and the Town’s involvement in the

coordination of same. The coordination of Officer McCullers’s off-duty

employment, however, existed in the context of broader police department policy

involving the review and approval of off-duty peace officer activities in general.

Appellees endeavor to impermissibly dissect the coordination of Officer

McCullers’s off-duty activity from the Town’s broader policy relative to oversight

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and approval of off-duty peace officer employment. As we have held, a plaintiff

“may not split various aspects of a city’s operation into discrete functions and

recharacterize certain of those functions as proprietary.” See Homoky, 294 S.W.3d

at 815 (quoting Butler, 131 S.W.3d at 178). As such, we must reject Appellees’

attempt to do so here.

C. Response to the Dissent

The Dissent would hold that the town’s coordination policy does not fall

within the ambit of police protection and control because the “Town coordinated

private security services for private property owners.” The Dissent explains that the

fundamental purpose of the policy is private-loss prevention, even if its ultimate

effect may have been crime reduction. For the purposes of this analysis, I see no

difference between the two. The police are charged with enforcing the State’s

criminal laws, many of which are specifically aimed at protecting private interests.

See, e.g., Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994) (“Our

burglary statutes are intended to protect the sanctity of private areas, be they

habitations, buildings not open to the public, or vehicles.”). Whether the police

discharge that duty by posting an on-duty officer at a private residence, or

alternatively coordinating the presence there of an off-duty officer, the outcome is

the same—police protection.

The Dissent also contends that we cannot rest our holding on “the potential

for activation of [a peace officer’s] on-duty status.” I do not agree that our holding

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is limited in the way the Dissent describes. Our focus is on the Town’s action, not

the officer’s status. The fact that Officer McCullers was off-duty, and would revert

to on-duty status only if he witnessed a crime in progress, is of no moment. What

matters is that the Town coordinated his presence at the property for the specific

purpose of providing police protection.

Finally, after concluding that the Town’s coordination of off-duty officers

does not fall under the enumerated governmental function of police protection and

control, the Dissent addresses the parties’ arguments related to the Texas Supreme

Court decisions in Wasson I and II. See Wasson Interests, Ltd. v City of Jacksonville,

489 S.W.3d 427 (Tex. 2016) (Wasson I) (case of first impression holding

governmental–proprietary dichotomy applies to contract claims); Wasson Interests,

Ltd v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) (Wasson II) (analyzing

whether contract claim arose from performance of governmental or proprietary

function). Even if I were to agree with the Dissent that the Town’s policy did not

constitute police protection and control, I would not apply the Wasson factor

analysis. Wasson I and II extended the TTCA’s governmental–proprietary-function

analysis to contract claims outside of the statutory construct of the TTCA and the

plethora of legal authority thereunder. Their application to tort claims would

unnecessarily complicate our analysis. Indeed, the Wasson factors were borrowed

directly from Section 101.0215 of the TTCA. See Wasson II, 559 S.W.3d at 150

(citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a), (b)). Where, as here, we

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are considering a tort claim, the statutory scheme of the TTCA provides a direct

route for determining whether the Town’s conduct is governmental or proprietary;

we need not take a detour into the Wasson factors to resolve the issue.

III. CONCLUSION

The issuance of three opinions for a discrete legal issue highlights the ongoing

struggle associated with judicial analysis and application of the governmental–

proprietary dichotomy, not only where expressly enumerated, such as under the

TTCA,5 but also in matters of first impression, as was the case in Wasson I.6 It is the

Legislature that is charged by the Texas Constitution with the responsibility of

classifying municipal functions as governmental or proprietary. See TEX. CONST.

ANN. art. XI, § 13. Should the Legislature endeavor to review the current

jurisprudence on the governmental–proprietary dichotomy, it may also warrant a

review of the “actual subjective awareness test” as set forth in Cathey, to address the

realities of knowledge imputed to or acquired by governmental bodies. The parties

in this case have endured uncertainty for 18 months and have the opportunity for one

more level of review by the Texas Supreme Court. The citizens of the State of Texas

and its governmental units deserve more certainty in the area of governmental

immunity, which includes more meaningful guidance and clarity under current

legislative immunity schemes as they exist and as they may be amended. Should the

5
There are over 400 cases citing § 101.0215 of the TTCA.
6
Nearly 100 cases have cited Wasson I and another 35 have cited Wasson II in the relatively few years
since they were published.
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Legislature decide that the judicial pronouncements or analysis, both in tort- and

contract-based claims, are indeed not in keeping with its statutory scheme, it is

certainly within the Legislature’s authority to provide tailored guidelines about

whether, when, and to what extent a litigant may sue a governmental entity or what

constitutes actual notice. See Tenorio, 543 S.W.3d at 779 (“[W]hen the questions are

of statutory construction, not of constitutional import, [the Legislature] can rectify

our mistake, if such it was, or change its policy at any time, and in these

circumstances reversal is not readily to be made.”) (quoting United States v. Buffalo

Ry. Co., 333 U.S. 771, 774–75 (1948)). Until then, Cathey, Tooke, Wasson, and their

progeny control.

Here, the record reflects a policy to permit off-duty employment of peace

officers, review and approval of such employment, and its designation as either

police related or non-police related. A decision on whether to utilize on-duty police

officers to monitor property, vacant, under construction to prevent injury to property,

or permit off-duty officers to provide a service at the behest of a resident is precisely

the type of exemption necessary to avoid judicial review of governmental policy

decisions.

Because the coordination and oversight of off-duty peace officer employment

is characteristically a matter of police protection and control, it falls within the

parameters of a governmental function under the TTCA, and Appellees were

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required to comply with the statutory pre-requisites of written or actual notice.

Because such notice was lacking in this case, I concur with the Majority.

/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE

191431CF.P05

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