O90-10CITY OF KENNEDALE
mrawmiWE" OW to
AN ORDINANCE PRESCRIBING A STANDARD OF CARE FOR
EMERGENCY ACTION BY THE CITY, ITS OFFICERS, AGENTS
AND EMPLOYEES, AND BY OTHER PARTIES; MAKING THIS
ORDINANCE CUMULATIVE OF OTHER ORDINANCES ON THE
SUBJECT; AND, NAMING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE,-
TEXAS THAT:
w
0
CITY OF KENNEDALE
ORDINANCE NO. 90 -10
AN ORDINANCE PRESCRIBING A STANDARD OF CARE FOR
EMERGENCY ACTION BY THE CITY, ITS OFFICERS, AGENTS
AND EMPLOYEES, AND BY OTHER PARTIES; MAKING THIS
ORDINANCE CUMULATIVE OF OTHER ORDINANCES ON THE
SUBJECT; AND, NAMING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE,
TEXAS THAT:
1.
Every officer, agent or employee of the city, and every officer,
agent, or employee of an authorized provider of emergency
services, including, but not limited to, every unit of government
or subdivision thereof, while responding to emergency calls or
reacting to emergency situations, regardless of whether any
declaration of emergency has been declared or proclaimed by a
unit of government or subdivision thereof, is hereby authorized
to act or not to act in such a manner to effectively deal with
the emergency. An action or inaction is "effective" if it in any
way contributes or can reasonably be thought by the provider of
such emergency service to contribute to preserving any lives or
property. This section shall prevail over every other ordinance
of the city and, to the extent to which the city has the
authority to so authorize, over any of the law establishing a
standard of care in conflict with this section. Neither the city
nor the employee, agent, or officer thereof, or other unit of
government or subdivision thereof or its employees, agents, or
officers shall be liable for failure to use ordinaryy care in such
emergency. It is the intent of the City Council, by the adoption
of this section, to assure effective action in emergency
situations by those entrusted with the responsibility of saving
lives and property by protecting such governmental units from
liabilityy, and their employees, agents, and officers from
nonintentional tort liability to the fullest extent permitted by
statutory and constitutional law. This section shall be
liberally construed to carry out the intent of the City Council.
M
That this ordinance shall be in full force and effect from and
after the date of its passage.
PRESENTED AND PASSED by a vote of
regular meeting of the City Council of
on the 13th day of December 1990.
ATTEST:
5 ayes and 0 noes at a
tiFe City of Kennedale held
APP DYED :
F A"
i V
:t ' t C ., ,
ayor eve a a o c
i y C Sbcretary
CITY OF KENNEDALE
ORDINANCE NO. 90 -10
AN ORDINANCE PRESCRIBING A STANDARD OF CARE FOR
EMERGENCY ACTION BY THE CITY, ITS OFFICERS, AGENTS
AND EMPLOYEES, AND BY OTHER PARTIES; MAKING THIS
ORDINANCE CUMULATIVE OF OTHER ORDINANCES ON THE
SUBJECT; AND, NAMING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE,
TEXAS THAT:
1.
Every officer, agent or employee of the city, and every officer,
agent, or employee of an authorized provider of emergency
services, including, but not limited to, every unit of government
or subdivision thereof, while responding to emergency calls or
reacting to emergency situations, regardless of whether any
declaration of emergency has been declared or proclaimed by a
unit of government or subdivision thereof, is hereby authorized
to act or not to act in such a manner to effectively deal with
the emergency. An action or inaction is "effective" if it in any
way contributes or can reasonably be thought by the provider of
such emergency service to contribute to preserving any lives or
property. This section shall prevail over every other ordinance
of the city and, to the extent to which the city has the
authority to so authorize, over any of the law establishing a
standard of care in conflict with this section. Neither the city
nor the employee, agent, or officer thereof, or other unit of
government or subdivision thereof or its employees, agents, or
officers shall be liable for failure to use ordinaryy care in such
emergency. It is the intent of the City Council, by the adoption
of this section, to assure effective action in emergency
situations by those entrusted with the responsibility of saving
lives and property by protecting such governmental units from
liability, and their employees, agents, and officers from
noninten ional tort liability to the fullest extent permitted by
statutory and constitutional law. This section shall be
liberally construed to carry out the intent of the City Council.
That this ordinance shall be in full force and effect from and
after the date of its passage.
PRESENTED AND PASSED by a vote
regular meeting of the City Council
on the 13th day of December 1990.
of 5 ayes and 0 noes at a
e
of th City of Kennedale held
APOOVED;'
yor Ste ve a a ov c
ATTEST:
City Secretary
GtyofArlingtonTexas
Mr. Don Driver
City Attorney
City Attorney's Office
City of Kennedale
Post Office Box 268
Kennedale, Texas 76060
RE: Mutual Fire Protection Agreement
Dear Mr. Driver,
VV
In the process of updating our Emergency Operation P1 s
Book, I noticed that Arlington and Kennedale have a M}aEua1
Fire Aid Agreement. For my file, please forward a cop
Kennedale's "Standard of Care for Emergency %Actionf
o if any. If an ordinance does not exist, you may
want to consider having one of the attached sampl% ordinances
passed by your council.
The reason for this ordinance is to take c e of the error at
Section 101.055(2) of the Texas Civil Pr ctice and Remedies
Code (attached). Please call if you an questions.
Sincerely,
IB /da
Attachments
Office of the City Attorney
200 West Abram Street
(817) 4 9 - 6 7
fi
� I/
��- a —®--
October 5, 1990,
Ivan Bland
Assistant City Attorney
cc: Paul G. Davidson, Assistant City Attorney
John Murphy, Assistant Chief /Operations
101 West Abram Street • Box 231 • Arlington, Texas 76004 -0231 • (817) 275 -3271 • (Metro 817) 265-3311
§ 101.051
Note 3
eration or use" of motor vehicle, as vehicle in.
valved was not owned or operated by any agent
of school district. 1leyer v. North Last Indepen-
dent School Dist. (App. 4 Dist.1987) 730 S.W.2d
130, ref. n.r.e.
Even if student's injuries were aggravated
When she had seizures on school bus, and school
Officials were negligent in failing to provide ade-
9uate medical care, school district and bus super-
visor were immune from liability for injuries
sustained when student struck but head during
or of s hoolobus. HopkinssvltSpr,
Independent School Dist. (SUP-1987) 736 S.W.2d
617.
6 . 5 • — Record keeping, governmental funs.
tion
Public college was entitled to sovereign inunu.
nity from negligence, defamatiun, and related
GOVERNMENTAL LIABILITY
Title 5
claims for misinforming newspaper that pulitical
candidate had not taken course at college as
claimed, in that college's record keeping regard-
ing courses and enrollments was government
function carried un pursuant to state's obligation
for general welfare of public. Freeman v. Del
Mar College (App. 13 Dist.1986) 716 S.W.2d 729.
9. Spectators
School district had governmental immunity
from suit for injuries suffered by spectator when
school bleachers collapsed while she was watch-
ing school district sponsored basketball game,
even though spectator was not a student or
employee of the school district, but rather was
an admission paying spectator. Gravely v. Lcw-
isville independent School Dist. (App. 2 Dist.
1986) 701 S.W.2d 956, ref, n.r.e.
§ 101.053. Judicial
(a) This chapter does not apply to a claim based on an act or omission of a court of this
state or any member of a court of this state acting in
function of }cis official capacity or to a judicial
a governmental unit. "Official capacity"
means al duties of o ffi ce and
includes administrative decisions me l
or actio
[See wtai,, uulu»ty fur text of (G�j
Amended by Acts 198 ?, 70th Leg., 1st C.S., ch. 2, § 3,04, eff. Sept. 2. 1987.
llistorieul Note
1987 Legislation
The 1987 amendment added the definition of
"official capacity"
For provisions of the 1987 amendatory act
relating W the effective date, findings and pur-
pose, severability, declaratory judgment and ac-
celerated appeals, see notes under § 9.001.
Notes of Decisions
Community service I
1. Community service
Neither the judge nor the county is liable for
injuries to the defendant or third parties result.
'119 frum the performance of community service
ordered as a condition of probation pursuant to
article 4 of the Texas Code of Criminal pro-
cedure following conviction of tire defendant for
a felony or misdemeanor. Op.Atty.Gen.1988,
Nu. JAI-898.
Judge and county are not liable for injuries
sustained by a juvenile or third parties resulting
frum service to charitabhJ a• educational institu.
Lions performed by the juvenile pursuant to Sce.
tiun 54.U•11 of tile' Family Code. Op.Atty.Gen.
1988, No. JM -898.
Neither the justice of the peace nor the count
is liable for injuries W the defendant or third y
parties resulting from the performance of rea.
somrble couunuuity service Ordered pursuant to
article C.C.Y •15.5.1 as a l'ondiLiOn of the deferral
Of it fine. Op.Atty, Cell, 1988, Nu. jh -898,
101.055. Certain Governmental Functions
This chapter does not apply to a claim arising:
(1) in connection with the assessment or collection of taxes by a governmental unit;
(2) from the action of an employee while responding to 1111 emergency cu]] or reacting
un emergency situation if the action is in compliance with the laws and ordinances
applicable to emergency action, or in the absence of such a law or ordinance, if the
action is taken with co indifference of reckless disregard for the safes of
others; or
Co
from the failure to provide or the method of providing police or fire protection.
Amended by Acts 1987, 70th Lug., 1st C.S., ch. 2, § 3.05, eff. Sept. 2, 1987.
40
GOVERNMENTAL L1A1311
Title 5
Historical Note
1987 Legislutiun
The 1887 amendment inserte
as to action taken with currsciuu,
reckless disregard fur the safe
the absence of a law or ordinal
emergency action.
Fur provisions of the 1987
relating to the effective date, fi
puce, severability, declaratory 1u
cclerated appeals, see notes uuil
Notes of Decision
3. Laws and ot•dinunces, goner
Evidence in wrungful death a
tiun against city arising Out of prr
gency medical Services to dueedui
autuhnubile cullision raised guuuir
Curial fact whether actions of L,
were in compliance with upplic
ordiaances, precluding summary j
X' v. City of Sao Anwnio (App, 4
S.W.2d 198.
S. Police protection —in gencru
Operaliun of police departureul i
url function" for which city erhj
City of Dallas V. Moreau (App. 13
S.W.2d 776, ref. n.r.c.
101.056. Discretionary 1'ov
United Slates Supreme Court
Qualified inuuwrity warriuhtic, .
hunre for fugitive, reasonable beli
sec Anderson v. Creighton, 1987, li
•163 U.S. 635, 97 L.Ed.2d 523.
Notes of Decisions
Arrest 5
Drainage iluprovemcnt 7
Garbage disposal 6
"Zoning and plunning 8
4. Streets and highways
Pruper nrriuluu;urce of stale h
state highway deparunent is not L
activity excluded frum liability undl
ter. tlanu•ic V. Kansas City South
(App. 9 DiSt.1986) 718 S.W.2d 91G
1'1ucirrg of stop signs is discretiona
and thus Surte may not be held liab .
geuee is placing of signs under f
Claims Act. Slaves v, Slaw (App. 1
7.13 S.W.2d 714, error denied.
5. Arrest
Pulice officer, who failed W arre
whu druve away aad crushed with inj
was performing discretionary functi�
irhg in guud faith and was catitlud i
EMERGENCY MANAGEMENT
6.01
ARTICLE VI
LIABILITY LIMITATIONS
Section 6.01 Governmental Immunity
This Ordinance is an exercise by the City of Arlington
of its governmental functions for the protection of the
public peace, health and safety; and neither the City nor
agents and representatives of said City - (or any individual,
receiver, firm, partnership, corporation, association,
trustee or any of the agents thereof, in good faith carrying
out, complying with or attempting to comply with any order,
rule or regulation promulgated pursuant to the provisions of
this Ordinance) shall be liable for any damage sustained to
persons or property as the result of said activity.
Section 6.02 Property Owner Immunity
Any person owning or controlling real estate, fixtures
or other premises, who is compelled by reason of authority
exercised pursuant to law to grant the City the right to
inspect, designate and use the whole or any part or parts of
such real estate, fixtures or premises for the purpose of
sheltering persons during an actual, impending or practice
disaster shall not be civilly liable for the death of, or
injury, to, any persons on or about such real estate or
premises under such license, privilege or other permission,
or for loss of, or damage to, the property of such person.
Section 6.03 Standard of Care for Emergency Action
Every officer, agent or employee of the City, and every
officer, agent, or employee of an authorized provider of
emergency services, including, but not limited to every unit
of government or subdivision thereof, while responding to
emergency calls or reacting to emergency situations., regard-
less of whether any declaration of emergency has been de-
clared or proclaimed by a unit of government or subdivision
thereof, is hereby, authorized to act or not to act in such a
manner to effectively deal with the emergency. An action or
inaction is "effective" if it in any way contributes or can
reasonably be thought by the provider of such emergency
service to contribute to preserving any lives or property.
This Section shall prevail over every other ordinance of the
City and, to the extent to which the City has the authority
to so authorize, over any other law establishing a standard
of care in conflict with this Section. Neither the City nor
the employee, agent, or officer thereof, or other unit of
government or subdivision thereof or its employees, agents,
ARTICLE -VI -1
(Amend Ord 87 -119, 8/25/87)
EMERGENCY MANAGEMENT
6.03
or officers shall be liable for failure to use ordinary care
in such emergency. It is the intent of the City Council, by
Passing this Ordinance, to assure effective action in emer-
gency situations by those entrusted with the responsibility
of saving lives and property by protecting such governmental
units from liability, and their employees, agents, and
officers from non - intentional tort liability to the fullest
extent permitted by statutory and constitutional law. This
Section shall be liberally construed to carry out the intent
of the City Council.
AR'PICLE -VI -2
(Amend Ord 87 -199, 8/25/87)
562 Tex. 695 SOUTH WESTERN REPORTER, 2d SERIES
I
thority to school principals, no violation of
due process, substantive or procedural, re-
sults therefrom.
[15] We do not agree with Starnes' ar-
gument that a school principal's exercise of
discretion pursuant to the "honors" excep-
tion to the rule is shielded from all review.
Arbitrary, capricious, or discriminatory ex-
ercise of a school principal's discretion pur-
suant to subsection 21.920(b) of the Texas
Education Code may well give rise to
claims based upon equal protection
grounds. See Yick Wo v. Hopkins, 118
U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
Accreditation audits of schools and school
districts may also afford relief against im-
proper utilization of the "honors" excep-
tion. We also note there are no findings of
fact before us that any of the student- plain-
tiffs received failing grades in honors or
advanced courses.
Finally, Stamos argues that because the
no pass, no play rule did not become effec-
tive until April 5, 1985, it was applied in an
ex post facto manner to the students in-
volved in this case. We choose not to
address this issue, because we have no
findings of fact before us relating to the
circumstances surrounding the application
of 'the rule to any of the concerned stu-
dents. We note that the district court has
yet to address this issue.
Accordingly, we reverse the district
court's judgment with regard to the consti-
tutionality of section 21.920 of the Texas
Education Code and dissolve the temporary
injunction ordered by the district court.
�i : f
o
Ron BLACK, Petitioner,
V .
NUECES COUNTY RURAL PIKE
PREVENTION DISTRICT NO. 2,
et al., Respondent.
No. C -1154.
Supreme Court of Texas.
July 10, 1985.
Rehearing Denied Sept. 25, 1985.
Volunteer fireman, who was struck
and injured by fire truck as it backed into
position at scene of fire, brought action
against the fire protection district and city.
The District Court No. 148, Nueces County,
Garza, J., entered judgment for fireman.
The Court of Appeals, 693 S.W.2d 492, re-
versed and rendered. The Supreme Court,
Robertson, J., held that district and city
were liable for negligence of their employ-
ees, where testimony established that there
were no laws or ordinances pertaining to
the emergency situation, making exception
to waiver of sovereign immunity inapplica-
ble.
Court of Appeals reversed; trial court
affirmed.
Hill, C.J., dissented and filed opinion,
in which McGee and Gonzalez, JJ., joined.
Automobiles e-187
The fire protection district and city
were liable for negligence of their employ-
ees, who struck and injured volunteer fire-
man with fire truck as it backed into posi•
Lion at scene of fire, where there were no
laws or ordinances pertaining to the emer-
gency situation, making exception to waiv-
er of sovereign immunity provision [Ver-
non's Ann.Texas Civ.St. art. 6252 -19,
§ 14(8)], inapplicable. Vernon's Ann: Texas
Civ.St. art. 6252 -19, §§ 3, 4, 13.
J. Bruce Aycock, City Atty., Jay Doegey,
Asst. City Atty., David Perry, Edwards,
McMains
McMuins
Gary, '
C. Holm
dent.
ROBE.
This c;
pretation
Tex.Rev.
1970). T
vention l
tion undt
pus Chri
roan, wa.
as it bac.
fire,
Mr. Bl'
favorably'
Preventiccc
court of
holding tl,
not waiv''
facts of
reverse tl
peals ant',
court.
The wt
Texas Tt
Ann. art.
tends to
tor- driver'
where (ti
of goveri
$ to the ch
of this sj
lu 6252 -19
instant c;
Vision.
"subject
in." Id.
The Pi
assert, a'.
chat this
ception
art. 6252
"The 11,
ply to:I
the aci : i
ee whl
or re''.
Petitioner,
RURAL FIRE
3TRICt NO. 2,
�ondent.
15a.
of Texas.
1985.
:Sept. 25, 1985.
, who was struck
:k as it backed into
ire, brought action
on district and city.
.48, Nueces County,
rment for fireman.
693 S.W.2d 492, re-
Che Supreme Court,
it district and city
ice of their employ -
.tablished that there
ances pertaining to
a, making exception
immunity inapplica-
, eversed; trial court
d and filed opinion,
Gonzalez, JJ., joined.
m district and city
-nee of their employ -
ijured volunteer fire-
; it backed into posi-
where there were no
rtaining to the emer-
1g exception to waiv-
tnity provision [Ver-
v.St. art. 6252 -19,
Vernon's Ann.Texas
1 3, 4, 13.
ty Atty., Jay Doegey,
vid Perry, Edwards,
i
I
t �
1
1
R
BLACK
McMains and Cons
McMains, Corpus Chr
Gary, Thomasson, Hall and Marks, John
C. Holmgreen, Corpus Christi, for respon-
dent.
ROBERTSON, Justice.
This cause presents a question of inter-
pretation of the Texas Tort Claims Act
T ex.Rev.Civ.Stat.Ann. art. 6252 -19 (Vernon
1970). The Nueces County Rural Fire Pre-
vention District No. 2 provides fire protec-
tion under a contract with the City of Cor-
pus Christi. Ron Black, a volunteer fire-
man, was struck and injured by a fire truck
as it backed into position at the scene of a
fire.
Mr. Black obtained judgment, based on
favorable jury findings, against the Fire
Prevention District and the City, The
court of appeals reversed and rendered,
holding that the Texas Tort Claims Act did
not waive sovereign immunity under the
facts of the case. 693 S.W.2d 492. We
reverse the judgment of the court of ap-
peals and affirm the judgment of the trial
court. 0
The waiver of soveYelg immunity in the
Texas Tort Claims /Act, Tex.Rev.Civ.Stat.
Ann. art. 6252 -19 § 4 (Vernon 1970), ex-
tends to situations involving "use of a mo-
tor- driven vehicle ... under circumstances
where [the] officer or employee [of the unit
of government] would be personally liable
to the claimant in accordance with the law
of this state." Tex.Rev.Civ- Stat.Ann. art.
6252 -19 § 3(b) (Vernon upp.1985). The
instant cause falls square within this pro-
vision. The waiver of liabi ity, however, is
"subject to the exceptions ontained here-
in." Id. , l • 0 (
The Fire Protection District and the City
assert, and the court of appeals agreed,
that this situation is controlled by the ex-
ception set forth in Tex, Rev.Civ.Stat.Ann.
art. 6252 -19 § 14(8) (emphasis added):
"The pro Isions of this Act shall not ap-
Ply to: ... (8) Any claim arising out of
the actin of an officer, agent or employ-
ee while responding to emergency calls
or react ng to emergency situations
Tox.Cayoe goo S.W.2d --6
�U
PREVENTION Tex 563
It action is in compliance with
and ordinances applicable to
emergency action."
Testimony from the training chief of the
Corpus Christi Fire Department, however,
established that there were no laws or ordi-
nances pertaining to this emergency situa-
tion. In the absence of laws or ordinances
applicable to emerge } - scti.on. there is no
exception to the waiver of sovereign irnrnu•
nity. The District and the City in this case
are thus liable for the negligence of their
employees. This conclusion follows from
the plain language of the statute: The Dis-
trict and the City could not comply with an
ordinance unless an ordinance in fact exist-
ed.
The court of appeals viewed subsection 8
as exempting emergency action from liabili-
ty unless that action violated a law or
ordinance. That interpretation is contrary
to the clear language of subsection 8, when
read in conjunction with the waiver of im-
munity contained in sections 3 and 4. It is
also contrary to the act's mandate of liberal
construction. See id. § 13.
For this reason, the judgment of the
court of appeals is reversed and the judg-
ment of the trial court is affirmed.
HILL, C.J., dissents with opinion in
which McGEE and GONZALEZ, JJ., join.
HILL, Chief Justice, dissenting,
I respectfully dissent. The majority con-
strues section 14(8) of the Texas Tort
Claims Act to mean that unless there is a
specific law or ordinance in existence and
applicable to an emergency situation, a
governmental unit is not exempt from the
Act's waiver of sovereign immunity. The
majority ignores the fundamental rule con-
trolling the construction of a statute; that
is, to aecertain, if possible, the intent of the
Legislature as expressed in the language
of the statute. Slate v. Terrell, 588
S.W.2d 784, 786 (Tex.1979).
I believe the Legislature's concern in en-
acting section 14(8) was to further the pub-
lic interest by assuring effective action in
i
v. NUECES CTY. RURAL FIRE
Cite w 695 S.W.2d 562 (Tex. 1985)
tant, Russell H. when suc
isti, for petitioner. the laws
564 Tex. 695 SOUTH WESTERN REPORTER, 2d SERIES
emergency situations by those entrusted
with the responsibility of saving lives and
property. The Legislature did not, how-
ever, intend to encourage governmental
units to violate statutes or ordinances dur-
ing emergencies, as this would be contrary
to the public interest. Section 14(8) was
designed to implement this legislative in-
tent by protecting governmental units and
their employees from liability for their fail-
ure to use ordinary care in an emergency
unless they act in violation of a standard of
care that has been statutorily provided.
The majority's interpretation of the pro-
vision places an impossible burden on gov-
ernmental units to provide by comprehen-
sive laws and ordinances for every re-
sponse that must be taken in an emergency
in order to gain the exemption. That con-
struction, in my opinion, frustrates rather
than effectuates the legislative intent.
There is no evidence in the record of this
cause that the District violated any stat-
utes or ordinances during the emergency
action. I would, therefore, hold that the
District is immune from liability pursuant
to section 14(8). Although Supreme Court lacks juris-
diction to issue writs of mandamus to su-
pervise or correct incidental rulings of the
trial judge when there is an adequate reme-
dy by appeal, mandamus will lie to direct
trial judge to enter or set aside particular
judgment when directed course of action is
the only proper course and petitioner has
no other remedy, where there is a clear
abuse of discretion, or, in the absence of
another adequate remedy, when district
court fails to observe mandatory statutory
provision conferring right or forbidding
particular action.
McGEE and GONZALES, JJ., join in this
dissent.
W
O SI(FY MUMUIR SYSTEM
T
Sharon Ann ABOR et al., Relators,
Y.
The Honorable William C. BLACK,
Judge et al., Respondents.
No. C -1047,
Supreme Court of Texas.
July 17, 1985,
Rehearing Denied Sept. 16, 1985.
Potential malpractice defendants
brought action seeking declaration of nonli-
ability, and malpractice plaintiff filed plea
in abatement. Trial court denied plea, and
malpractice plaintiff sought writ of manda-
mus. The Supreme Court, Spears, J., hold
that: (1) trial court should have declined to
exercise its jurisdiction over declaratory
judgment action, but (2) writ of mandamus
would not lie absent a clear abuse of discre-
tion or direct conflict of jurisdiction.
Writ denied.
Robertson, J., dissented and filed opin-
ion in which Hill; C.J., joined.
I. Courts a28
Although district court had jurisdiction
over action by potential malpractice defend.
ants for declaration of nonliability, that
court should have declined to exercise such
jurisdiction where it deprived potential
Plaintiff of traditional right to choose time
and place of suit. Vernon's Ann.Texus
Civ.St. art. 2524 -1.
2. Mandamus «3(1), 53
3, Mandamus «4(1), 31
Where potential malpractice defend.
ants brought action for declaration of nonli.
ability, and malpractice plaintiff filed plea
in abatement so that action could be tried
in another county, court's exercise of juris-
diction over declaratory judgment action,
although improper, did not create conflict
of jurisdiction and was not a clear abuse of
discretion, and thus, mandamus relief was
5
the
�t'w4�1 +,inn
§ 101.051
Note 3
3. Motor vehicles —In generul
Motor vehicle exception to school district's im-
munity from liability under Vernon's Ann.Civ.St,
art. 6252 -19, § 19A (repealed; see, now, V,T.
C.A., Civil Practice & Remedies Code §§ 101.021,
101.051) was inapplicable to suit arising from
fellow student's loss of control of his automobile
on school premises; suit did not arise from "op-
erution or use" of motor vehicle, as vehicle in-
volved was nut owned or operated by any agent
of school district. Heyer v. North Last Indopen•
dent School Dist. (App, 4 DisL1987) 730 S.W.2d
130.
6.5. — Record keeping, governmentul func-
tion
Public college was entitled to sovereign immu-
nity from negligence, defamudun, and related
GOVERNMENTAL LIABILITY
, Title 5
claims for misinforming newspaper that political
candidate had not taken course at college as
claimed, In that college's record keeping regard-
ing courses and enrollments was government
function curried on pursuant to state's obligation
for general welfare of public. Freeman v, Del
Mar College (App. 19 Dist.1986) 716 S.W.2d 729.
9. Spectutoru
School district had governmental Immunity
from suit for injuries suffered -by spucuttor when
school bleachers collapsed while she wits wawh-
ing school district sponsored basketball game,
even though spectator was not u student or
employee of the school district, but rather was
an admission paying spectator. Gravely v. Lew-
isville Independent School Dist. (App. 2 Disk
1986) 701 S.W.2d 956, ref, mr.e.
COVE RN111ENTAL LIABILI
Title 5
11. Fire prolectlon—In general
Counties are liable for negli
agents furnishing fire services I
contract authorized by articles
:a51a -5, V.T.C.S., to the extent si
§ 101.053. Judicial
(a) This chapter does not apply to a claim based on an act or omission of a court of this
state or any member of a court of this state acting in his official capacity or to a judicial
function of a govermnenud unit. "Official capacity" means all duties of office and
includes administrative decisions or actions.
[See main volume ,/or text of (b))
Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 3.04, eff. Sept. 2, 1987.
1987 Legislation
The 1987 amendment added the definition of
"official capacity ".
For provisions of the 1987 amendatory act
relating to the effective date, findings and pur-
pose, severubility, declaratory judgment and ac.
celerated appeals, see notes under § 9.001.
§ 101.055. Certain Governmental Functions
This chapter does not apply to a claim arising:
(1) in connection with the assessment or collection of taxes by a governmental unit;
(2) from the action of an employee while responding to an emergency call or reacting
to an emergency situation if the actiun is in compliance with the laws and ordinances
applicable to emergency action, or in the absence of such a law or 'ordinance, if the
action is taken with conscious indifference or reckless disregard for the safety of
others; or
(3) from the failure to provide or the method of providing police or fire protection.
Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 3.05, eff. Sept. 2, 1987.
1987 Legislation
The 1987 amendment inserted the provisions
us to action taken with conscious indifference or
reckless disregard fur the safety of others, in
Lite absence of a law or ordinance applicable to
emergency action.
For provisions of the 1987 umendatory act
relating to the effective date, findings and pur-
pose, severubility, declaratory judgment and uc-
celurated appeuls, see notes under § 9.001.
Notes of Decisions
8. Police protection —In general
Operation of police department is " governmen
Lai function" fur which city enjoys immunity.
City of Dallas v. Moreuu (App. 13 Di4t.1986) 718
S.W.2d 776, ref, n.r.e.
9. -- hlethuds of providing police prulec-
lion
Police officers' conduct, in failing to make
warrantless arrest of party who had previously
removed daughter from ex-wife's home contrary
to protective order, fell within immunity retained
by government for its "failure to provide or
method of providing police or fire protection';
accordingly, city was nut liable to ex -wife when
party shot daughter and subsequently commit-
ted suicide. Robinson V. City of San Antonio
(App. 4 Dist.1987) 727 S.W.2d 40, rut, n.r.e.
26
§ 101.056. Discretionary Po
Arrest 5
Notes of Decisions
4. Streets and hlghways
Proper maintenance of state Ili
state highway department is not dis
activity excluded from liability under
§ 101.058. Repealed by Acts 19
1987 Legislation
Section 4.04(b) of the repealing uct
"If a provision of Section 3.02 of t
held invalid or its upplieution to any
circumstance is held invalid, Sections
and 3.13 of this Act are void and have
If a provision of Section 3.U3 of this
invalid or its application to any person
stance is held invalid, Sections 3.02,
3.13 of this Act are void ,,nd have no e
provision of Section 3.13 of this A
invalid, Sections 3.02, 3.03, and '3.19 u
are void and have no effect. All othe
of this Act are severable as pruvided
tion (a) of this section."
For effective date provisions of thel
act, see note under § 9.001.
Notes of Decisions
1. In general
Guverninent activities which are
prietary and partly governmental in
§ 101.062. 9 -1 -1 Emergency Seri
(a) In this section, "9-1 -1 servii
those terms by Section 1, Chapteil
1985 (Article 1.132f, Vernon's Texu
(b) This chapter applies Lo a claii
an employee of the public agency
that involves providing 9-1 -1 serve
action violates a statute or ordinal
Added by Acts 1987, 70th Leg., ch. 23
1987 Legislution
Application of 1987 amendatory act,
under Vernon's Ann.Civ.St. art. 1432f.
GOVERNMENTAL LIABILITY
Title 6
forming newspaper that political
'ad not taken course at college as
.hat college's record keeping regard
and enrollments was government
ricd on pursuant to state's obligation
welfare of public, Freeman v. Del
(.app. 13 Dist.1986) 716 S.W.2d 729.
rd
strict had governmental immunity
injuries suffered by spectator when
1ers collapsed while she was watch•
iistrict sponsored basketball game,
sPecwwr was not a student or
the school district, but rather was
Paying spectator. Gravely V. Lew.
undrnt School Dist (APP. 2 Dist,
N• "d 956, ref, n.r.e.
ct or omission of a court of this
Of ficial capacity or to a judicial
leans all duties of office and
(b)1
A. 2, 1987.
lity, declaratory judgment and ac.
a Is, see notes under § 9,001
zu , 8 by it governmental unit;
Lin emergency call or reactin
with the laws and ordinances
ch a law or ordinance, if the
disregard for the safety of
.ling police or fire protection
. 2, 1987.
Moreau (App, 13 Dist.1986) 718
n .r.c.
Of providing police protec-
' conduct, in failing to make
it of party who had previously
r from ex- wife's home contrary
r, fell within immunity retained
'or its "fuilurc to provide or
ing police or fire protection'
vas not liable w ex -wife who
'er and subsequently commit-
[15011 v. City of San Antonio
727 S. W.2d 40, W. n.r.e,
GOVERNMENTAL LIABILITY
Title 5
11, Fire protection —In general
Counties are liable for negligent acts of
co furnishin ntract authorized by s articles pu rsuan t l or
2351a -6, V.T.C,S., to the extent specified In the
§ 101,056. Discretionary Powers
Arrest 5
Notes of Decisions
4. Streebi and highways
Proper maintenance of state highways by
state highway department is not discretionary
activity excluded from liability under this chap.
§ 101,062
Tort Claims Act [V.T,C.A,, Civ, p & Rem. Code
§ 101,0661; however, counties are not liable for
the intentional common law torte of agents fur•
nishing fire protection service, Op.Atty.Gen,
1987, No. JM -748,
ter. Hamric Y. Kansas City Southern Ry. Co.
(App. 9 Dist,1986) 718 S,W,2d 916, ref. n,r.e,
S. Arrest
Police officer, who f4dud w arrest motorist
who drove away and crashed with injured driver,
was performing discretionary function and act•
ing in good faith Lind was entitled to qualified
immunity from liability. Dent v, City of Dallas
(App. 5 Dist.1986) 729 S.W.2d 114,
§ 101.058, Repealed by Acts 1987, 70th Leg., lot C.S., ch. 2, § 3.13 eff Se t 'l 19
1987 Legislation
Section 4.04(b) of the repealing act provides;
"!f u provision of Section 3.02 of this Act is
held invalid or its application to any person or
circumstance is held invalid, Sections 3.02, 3.03,
and 3,13 of this Act are void and have no effect,
If a Provision of Section 9,03 of this Act is held
invalid or its upplicution to tiny pennon or eircurn-
stance is held invalid, Sections 3,02, 3.03, and
3,13 of this Act are void Lind have no effect, if u
Proviuion of Section 3,13 of this Act is held
Invalid, Sections 3.02, 3.03, and 3,13 of this Act
are void and have no effect. All other sections
Of this Act are neveruble as provided in Subsec-
tion (u) of this section."
I "or effective date provisions of the repealing
act, ace note under § 9.0U1,
Notes of Decisions
L In general
Government activities which tiro partly pro-
prietary and partly governmental in nature do
p . , 87
not entitle city to immunity. City of Dallas v,
Moreau (App, 13 Dist.1986) 718 S,W.2d 776, ref.
n.r,e,
6. Proprietary functions —In gcncrul
Operation by city of municipal cemetery was
proprietary rulher than governrnenurl uction
with respect to which this chapter did not apply,
City of Gladewater v. Pike (Sup-1987) 727 S.W.2d
514.
7. — Slrect mulnlcnunce, proprietary func•
lions
Nothing in this chapter cliangcu city's com.
men -law duty to maintain safe street:., or fact
that street maintenance is proprietary function,
nor does Act put ceiling on damages that can be
recovenA from city fur failure to perform pro-
prietary duties involving pasting and mainte-
nance of wurning signs, City of Pusudenu v.
Frccman (App, 14 Dist.1967) 731 S,IY.2d 590,
101.062. 9 -1 -1 Emergency Service
(a) In this section, "9-1 -1 service" and "public agency" have the meanings assigned
those terms by Section 1, Chapter 909, Acts of the 69th Legislature, Regular Session,
1985 (Article 1432f, Vernon's Texas Civil Statutes).
(b) This chapter applies to a claim against a public agency that arises from an action of
an employee of the public agency or a volunteer under direction of the public agency and
that involves providing 9 -1 -1 service or responding W a 9 -1 -1 emergency call only if the
action violates a statute or ordinance applicable to the action.
Added by Acts 1987, 70th Leg., ch. 230, § 2, off. Aug, 31, 1987.
1987 Legislation
Application of 1987 amendatory act, see note
under Vernon's Ann.Civ,St. art. 1432f.
27
,-A,
l W�tii.
CITY OF_KENNEDALE "�Bui1xn
for `Jommorrow"
209 N. New Hope Road, P. O. Box 268 . Kennedale, Texas 76060 . (817) 478 -5418
December 14, 1990
Mr. Ivan Bland
Assistant City Attorney
200 West Abram Street
P.O. Box 231
Arlington, Texas 76004 -0231
Dear Mr. Bland:
Please find enclosed Ordinance No. 90 -10 relating to
"Standard of Care for Emergency Action" between Kennedale and
Arlington.
If you should have any questions please do not hesitate
in contacting me.
Sincerely,
Linda Jones
City Secretary
LJ /kat
Encl.