Lead Opinion
OPINION ON REHEARING
This is an interlocutory appeal from the trial court’s order denying the City of
On April 18, 2014, we issued an original opinion in this case. On May 19, 2014, Downstream filed a motion for rehearing. We deny the motion for rehearing, but withdraw our opinion and judgment of April 13, 2014, and issue this opinion in its stead. The disposition remains unchanged: we reverse the trial court’s order in part, and we hold that the City is immune from Downstream’s claims for money damages arising from breach of contract, negligence, and alleged constitutional violations. We remand the case to the trial court to allow the remaining requests for injunctive relief based on constitutional claims to proceеd.
Background
Downstream Environmental, LLC is a liquid waste disposal business that operates a nonhazardous waste treatment plant in west Houston. It operates in accordance with an industrial waste permit issued by the City of Houston Department of Public Works and Engineering. This permit allows Downstream to discharge into the City’s sanitary sewer system liquid wastes that comply with limitations on the type and concentration of certain pollutants. These wastes are then processed at the City’s Beltway wastewater treatment plant.
On the afternoon of May 25, 2010, a truck from G.I. Environmental Vacuum Service, a waste transportation company, entered Downstream’s facility. After offloading a few hundred gallons of waste, a Downstream employee noticed that it was darker than usual and had a foul odor, described as one of “rotting onions” or an “industrial type ddor.” Approximately 1,000 to 2,000 gallons of nonconforming waste was off-loaded into Downstream’s facility that day before employees rejected the remainder of the truck’s contents. The next day, the same G.I. Environmental driver delivered a second load of nonconforming waste. Downstream accepted no more than 1,000 gallons of non-conforming waste before the truck and its contents were again rejected.
Meanwhile, on the evening of May 25, the City of Houston Health Department received complaints of an offensive odor near the Beltway wastewater treatment plant. The next morning, the City began investigating the source of the odor, and employees at the Beltway Wastewater Laboratory, which is located on the same site as the Beltway wastewater treatment plant, were told to vacate the building due to a pervasive and offensive odor. The then-unknown toxic substance in the City’s sanitary sewer system killed all of the biological treatment microorganisms at the wastewater treatment plant. Without these microorganisms, the plant cannot function, and death of the microorganisms created an emergency situation for the City and required the sewer lines and lift stations to be decontaminated and the plant to be re-seeded.
On May 26, 2010, Dan Noyes, one of Downstream’s owners, met with the City regarding the non-conforming waste. The City closed the discharge line between
Nevertheless, the facility remained closed for 21 days while the City investigated. While Downstream was shut down, the City decided to permanently discontinue wastewater services to the facility. Downstream requested an administrative hearing as authorized by the Houston municipal code. See Code op Ordinances: City of Houston, Tex. § 47-208(a) (Supp. 2013). The administrative judge ruled in favor of Downstream, and the City restored wastewater services the next day. By the time Downstream restarted its operations, waste had solidified in its equipment leading to what it characterized as “catastrophic” failures. Downstream conducted extensive cleaning and replacement of component parts; however, it lost some of its business to a competitor.
In September 2011, the City informed Downstream that it would begin using a new sample location, a manhole outside of Downstream’s property, to determine compliance with pollutant discharge limitations. In October 2011, the City increased Downstream’s per-gallon cost of discharging wastewater by approximately 700%, which Downstream contends effectively put it out of business. In April 2012 the City reduced that cost, however even the reduced rate was 300% higher than the cost to Downstream before October 2011. Downstream alleged that the City acted improperly by using faulty testing methods and a non-credentialed in-house laboratory. It requested retesting by a credentialed external laboratory, and the City refused.
Downstream then sued the City for various causes of action pertaining to the plugging of the discharge line in the spring of 2010, the increase in its wastewater rates, and the discharge-sampling decisions. In its third amended petition, Downstream alleged the following causes of action: (1) “due process” violations in wrongfully terminating wastewater services and in wrongfully increasing the rates; (2) “equal protection” violations in denying administrative hearings when requested and in failing to lower the charged rate upon proof from an external laboratory; (3) breach of contract; and (4) negligence.
Downstream generally pleaded for monetary damages for loss of sales revenue, costs of plant repairs and hazardous materials clean-up, loss of good will, loss of market share, loss of the market value of the company, attorneys’ fees, pre-and post-judgment interest, and costs as allowed by law. With respect to its “due process” and “equal protection” claims,
The City filed a plea to the jurisdiction based on governmental immunity. Down
Analysis
The City contends that the trial court erred by denying its plea to the jurisdiction because it is immune from suit for several reasons: (1) the operation of the sanitary sewer system is a governmental function; (2) injunctive relief and money damages are both unavailable on the “due process” claims; (3) the “equal protection” claim is facially invalid; (4) there is no allegation of a contract subject to the limited waiver of immunity under Local Government Code section 271; and (5) the City retains immunity from intentional tort claims even if pleaded as negligence. Downstream’s response centers on its contention that the City engaged in a proprietary function by providing the industrial waste permits, and therefore it is simply not immune from suit. To this end, Downstream argues that the City was engaged in a proprietary function because it was functioning as a “public utility provider,” and the Tort Claims Act provides that the operation and maintenance of a public utility is a proprietary function. See Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(b) (West Supp.2013).
I. Governmental immunity as jurisdictional bar
A plea to the jurisdiction based on governmental immunity questions a trial court’s subject-matter jurisdiction. State v. Holland,
A plea to the jurisdiction may challenge the existence of jurisdictional facts. Miranda,
If “the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.” Id. at 226-27. A court may grant a plea to the jurisdiction without
“Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages.” Mission Consol. Indep. Sch. Dist. v. Garcia,
Governmental immunity includes both immunity from suit, which- deprives a court of subject-matter jurisdiction, and immunity from liability, which is an affirmative defense. See Miranda,
II. Immunity from contract and tort claims
Downstream has asserted a variety of theories of- breach of contract as well as negligence claims against the City. We will analyze these claims for money damages together to determine whether the City has validly asserted a claim of immunity from such claims.
A. Proprietary-governmental function dichotomy
In determining whether a governmental entity is immune from suit, we consider whether the actions complained of were in furtherance of governmental or proprietary functions. See Tooke v. City of Mexia,
Downstream’s claims are based on its contention that in the spring of 2010 the City plugged the wastewater discharge line between Downstream’s facility and the City’s sanitary sewer system. The statutory list of governmental functions includes “sanitary and storm sewers.” Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(9). Downstream nevertheless argues that the industrial wastewater services at issue in this case differ from sanitary sewer service and that the City’s actions are proprietary because (1) the City has discretion in permitting a significant industrial user to discharge treated wastewater into its sanitary sewer system, (2) the City profits from this service, and (3) the service primarily benefits a party within the City’s limits rather than the general public.
To support its argument that this particular action is a proprietary function not “arising from” its governmental function of operating a sanitary sewer system, id., Downstream relies on Parker v. Distel Construction, Inc., No. 10CA 18,
The Tort Claims Act classifies “health and sanitation services,” “sanitary and storm sewers,” and “water and sewer service” as governmental functions. Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(2), (9), (32). The line that was рlugged was the connection between Downstream’s facility and the City’s sanitary sewer. Thus, Downstream’s claims arise from the City’s governmental functions of providing and operating “sanitary ... sewers” and “sewer service.”
Downstream also contends that this case is governed by the “service within a service” rule which creates liability for a city that adds discretionary services to its normal governmental functions. See Temple v. City of Houston,
A similar argument was rejected in Tooke v. City of Mexia,
Likewise, other courts of appeals have held that “governmental functions encompass activities that are closely related to or necessary for performance of the- governmental activities designated by statute.” City of Houston v. Petroleum Traders Corp.,
In this case, the line that was plugged by the City connected Downstream’s facility directly to the City’s sanitary sewer system. In his affidavit Walid Samarneh, a professional engineer who works as the managing engineer of the City’s Public Works and Engineering Department, Wastewater Operations, explained that the release of an unknown toxic substance contaminated the sewer lines and killed all the biological treatment microorganisms. Sa-marneh averred that this “created an emergency situation for the City” which required corrective measures:
The microorganisms are a necessary component of the wastewater treatment process and without them the Beltway Plant could not function properly or meet its TPDES effluent permit limits. The plant had to be re-seeded with new microorganisms. The sewer lines and lift stations also had to be decontaminated so that they did not re-damage the Beltway Plant.
The record contains conflicting evidence as to whether Downstream was involuntarily shut down by the City, or whether it instead voluntarily capped the dischаrge lipe to prove that it was not the source of the nonconforming discharge. On rehearing, Downstream contends that there was no evidence that it was necessary for the City to close its discharge line. This argument misses the point. The record shows that the investigation and closure of the discharge line — whether accomplished voluntarily by Downstream or required by the City — were part and parcel of the City’s emergency actions to return its sanitary sewer system to operational status. This does more than touch upon a governmental service because these actions are intertwined with a function that the Legislature has determined to be governmental, i.e., sanitary sewer services. See Ethio Express Shuttle Svc.,
Similarly, the City’s issuance of permits to discharge industrial wastewater did not constitute the undertaking of a proprietary function. Rather, that process established the conditions under which Downstream and others are allowed to use the sanitary sewer system — the operation and maintenance of which is a governmental function — for industrial wastes. The City’s challenged activities do more than “touch upon” sanitary sewers and sewer services: they are in fact the very same thing. This case does not involve a “service within a service”; it is a case involving a service that the Legislature has already determined to be a governmental function. Accordingly, we hold that the City’s actions in plugging the discharge line between Downstream’s facility and the City’s sewer system involved a governmental function ‘for which the City has immunity.
Downstream further argues at length that the City’s actions with regard to permitting the discharge of industrial waste and the operation of the sewer system and wastewater treatment plant constitute the operation and maintenance of a public
B. Waiver of immunity
Finally, even when we have determined that a municipality’s action giving rise to a claim was governmental in nature, we still must consider whether immunity nevertheless has been waivеd. See, e.g., Tooke, 197 S.W.Sd at 344; McDonald v. City of the Colony, No. 02-08-263-CV,
In the trial court, Downstream argued that the City had waived governmental immunity in several ways apart from allegedly engaging in a proprietary function. Downstream argued that the City waived immunity from suit by “bringing claims against [it] for a disputed $286,296.40 wastewater bill and filing notice of lien on real property” for the same amount. But Downstream’s claims in this appeal are not actually counterclaims filed in response to a suit initiated by the City; rather Downstream initiated the suit as a plaintiff asserting various causes of action against the City. The Supreme Court has held that the Local Government Code, by providing that a “municipality may plead and be impleaded in any court,” see Tex. Loo. Gov’t Code Ann. § 51.075 (West 2008), did not indicate “a clear legislative intent to waive immunity from suit.” Tooke,
The Local Government Code also includes an express waiver of immunity from suit for breach of a written contract for provision of goods or services to the local governmental entity or for the “sale or delivery of not less than 1,000 acre-feet of reclaimed water by a local governmental entity intended for industrial use.” Tex. Loc. Gov’t Code Ann. §§ 271.151(2) (West Supp.2013), 271.152 (West 2005). Downstream has not pleaded the existence of a written contract for the provision of goods or services to the City, and the waiver of immunity in the Local Government Code does not apply to this case.
Finally, in its Second and Third Amended Petitions, Downstream argued that the City waived immunity by actions constituting “duress, coercion, and bullying.” The Legislature has granted a limit
property damage ... 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 ... 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 ....
Tex. Civ. Prao. & Rem.Code Ann. § 101.021(1) (West 2011). No such allegation appears in Downstream’s live pleading, and we conclude that the Legislature has not waived the City’s immunity as to Downstream’s negligence claim.
Accordingly we find no applicable waiver of the City’s immunity as to Downstream’s contract and negligence claims for monetary damages, and we hold that the trial court erred by failing to grant the City’s plea to the jurisdiction as to those claims.
III. Constitutional claims
Downstream also alleged “due process” and “equal protection” claims in relation to the termination of services and imposition of rate increases and past-due charges. Downstream’s live pleading in the trial court and briefing in this court expressly invoke state constitutional protections.
Invoking Article I, section 19 of the Texas Constitution, the first count of Downstream’s live pleading alleged wrongful termination of utilities and a wrongful rate hike “without due process.” Section 19 provides that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const, art. I, § 19. Downstream alleged that “the City’s refusal to provide wastewater disposal utility water services to the property and illegal sampling and testing methods, and illegal rate hikes, are unconstitutional and illegal, and constitutes an arbitrary, capricious, and irrational action by the City.” Downstream alleged that it has been overcharged by $286,296.40 and that it has been denied an administrative hearing to address the overcharge. It also alleged the City’s failure to abide by its “termination and rate setting laws set out in [the] Houston Code of Ordinances .... constitute[d] a violation of [its] rights to notice, hearing, and due process.”
Downstream also invoked Article 1, section 3 of the Texas Constitution in support of allegations of an “equal protection” violation for alleged ongoing harassment. Section 3 provides- that “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” Tex. Const, art. I, § 3.
A. Injunctive relief
In its petition Downstream sought “equitable relief from the violation of rights to due process.” By its pleadings it sought to enjoin the City from denying it “due process” and “equal protection,” and to void the City’s administrative actions regarding rate increases.
In its live pleading, Downstream complains that the denial of its requests for administrative hearings in regard to billing and related matters violate its “due process” and “equal protection” rights. By
The Texas Constitution authorizes suits for equitable or injunctive relief for violations of the Texas Bill of Rights. City of Beaumont v. Bouillion,
Texas courts have held thаt to assert an equal-rights claim under article I, section 3, a claimant must allege that it was treated differently from other similarly situated parties, without a reasonable basis. See, e.g., City of Dallas v. Jones,
Although the City did not raise the facial invalidity of Downstream’s equal-rights claim in its plea to the jurisdiction, we address it because jurisdictional arguments may be raised for the first time on appeal. See, e.g., Rhule,
Construing ■ its pleading liberally, we conclude that Downstream’s allegations of arbitrary, capricious, irrational, and dispa
The City also argued that the court lacked jurisdiction because evidence shows that it acted reasonably in plugging Downstream’s discharge line. See Johnson,
The City argued in the trial court, as it does on appeal, that the facts do not support the equal-rights claim because there was no dispute that its facility had been contaminated, that it acted reasonably in plugging the line from Downstream to the sewer, and this action was rationally related to the legitimate governmental function of providing sewer service. While this evidence may establish the reasonableness of initially closing the discharge line between Downstream’s facility and the City’s sеwer,
As to the due-course-of-law claim, which includes the complaint that Downstream has been denied administrative hearings, the City contends that the court lacks jurisdiction because Downstream failed to allege a declaratory-judgment action. Specifically, the City argues that a due course of law claim is the wrong procedural vehicle for raising complaints about the City’s administrative actions and rate increases. The City further argues that because the Declaratory Judgments Act provides an express waiver of governmental immunity for declaratory relief but not for monetary damages, see Gatesco,
The City also argues that Downstream’s request for injunctive relief is moot to the extent it is premised upon a complaint about the wrongful termination of utilities which have since been restored. However, Downstream’s allegations and request for injunctive relief are not limited to the past termination of wastewater services. Rather, Downstream has alleged that unfair treatment by the City is “ongoing,” and that the City has “repeatedly denied Administrative hearings” to address the unequal treatment that Downstream claims it has received. Accordingly, Downstream’s constitutional allegations are not solely backward-looking, and we conclude that the requests for injunctive relief are not moot.
Finally, the City argues that to the extent Downstream is attempting to raise an inverse condemnation claim, the district court lacked subject matter jurisdiction as a matter of law. “A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.” Tex. Gov’t Code Ann. § 25.1032(c) (West Supp.2013). However, Downstream’s live pleading at the time the trial court denied the City’s plea to the jurisdiction was its Third Amended Petition, and that pleading contained no claim for inverse condemnation. See Villarreal v. Harris Cnty.,
B. Claim for money damages
As a remedy for the alleged “due process” violations, Downstream also sought monetary damages “within the jurisdictional limits of this court.” The City argues that such damages are legally unavailable, and we agree. There is no implied right of action to recover money damages for violation of the due-course-of-law provision in the Texas Bill of Rights. See, e.g., Tex. S. Univ. v. Araserve Campus Dining Servs. of Tex., Inc.,
Conclusion
We reverse the order of the trial court in part, hold that the City is immune from all of Downstream’s contract and negligence causes of action as well as its claims for monetary relief based on constitutional violations, and we render judgment of dismissal on those claims. We conclude that the jurisdictional plea was correctly denied with respect to constitutional claims for injunctive relief, and we remand for fur
Notes
. Despite the use of this terminology, Downstream's petition is expressly and exclusively premised on provisions of the Texas Bill of Rights which prohibit the deprivation of "life, liberty, property, privileges or immunities,” or any manner of disenfranchisement, "except by the due course of the law of the land,” Tex. Const, art. I, § 19, and further provide that "[a]ll free men ... have equal rights,” id. art. I, § 3.
. The City’s evidence included Downstream’s permit, several affidavits that described the events of May 25 and 26 and immediate need to plug the discharge line, excerpts from a show cause hearing in which one of Downstream's owners said he asked for the line to be “capped,” Downstream’s answer in a lawsuit filed by G.I. Environmental Vacuum Service, and provisions of the City’s municipal code.
Dissenting Opinion
dissenting.
Appellee, Downstream Environmental, L.L.C. (“Downstream”), claims that it is entitled to damages and equitable relief for harm it alleges it suffered when appellant, the City of Houston (“the City”), temporarily closed the discharge. line from Downstream’s liquid waste disposal facility into the City’s sewer system without notice, kept the discharge line shut for twenty-seven days, and then discriminatively overcharged it, denied it an administrative hearing on its overcharge and abuse of process claims, and attempted to place a lien on its property. I agree with the majority that Dоwnstream’s claims for damages are barred by governmental immunity. I disagree with the majority’s determination that Downstream’s claims for equitable and injunctive relief under the Texas Constitution’s due process and equal protection clauses, Article I, sections 3 and 19,
I would reverse the trial court’s order denying the City’s plea to the jurisdiction, and I would render judgment dismissing Downstream’s suit against the City for lack of subject matter jurisdiction.
Background
In its constitutional claims, Downstream seeks to void or enjoin allegedly unconstitutional governmental action by the City. Specifically, it alleges that the City has violated its constitutional due process rights by closing its industrial wastewater service without notice, discriminatively increasing its rates, denying it timely administrative hearings on its wastewater bill, and endeavoring to file a lien and foreclosure on its business. In its equal protection claim, it alleges that it has been singled out for disparate treatment by the City without a rational basis. It complains of the City’s sampling, laboratоry, and testing methods relied upon to increase Downstream’s wastewater rates, putting Downstream out of business. Downstream contends that the City acted without a rational basis and treated it differently from all other industrial wastewa-ter customers, denying it equal protection. It also claims that the City violated its due process rights by denying it administrative hearings that are a prerequisite to filing a claim in state district court. I would hold that Downstream’s due process and equal protection claims are barred by the City’s governmental immunity, and, therefore, this Court and the district court lack subject matter jurisdiction over them. I would further hold that these claims fail to state a claim upon which relief can be granted and that they cannot be repleaded to state a viable claim.
Standard of Review
A plea to the jurisdiction based on governmental immunity questions a trial court’s subject matter jurisdiction. State v. Holland,
Governmental immunity includes both immunity from suit, which deprives a court of subject matter jurisdiction, and immunity from liability, which is an affirmative defense. Sweeny Cmty. Hosp. v. Mendez,
Analysis
A. Due Process
Downstream contends that the City’s “illegal sampling and testing methods, and illegal rate hikes, are unconstitutional and illegal, and constitutes [sic] an arbitrary, capricious, and irrational action by the City,” resulting in overcharges of “approximately $286,296.40,” and that it was denied “an administrative hearing to address overcharging” by the City, in further violation of its constitutional due process rights. I would hold that these “due process” claims are moot to the extent they seek to enjoin the City’s past actions and that, to the extent they do not, they are disguised claims for monetary damages. Downstream does not otherwise assert a due process claim upon which relief can be granted, and I would conclude that the facts in the record upon which Downstream predicates its due process claims affirmatively negate the existence of any such claim. I would hold that the Texas courts lack subject matter jurisdiction over Downstream’s due process claims.
First, Texas courts lack jurisdiction to enjoin past actions. “A case becomes moot if at any stage there ceases to be an actual controversy between the parties.” Nat’l Collegiate Athletic Ass’n v. Jones,.
Second, to the extent Downstream seeks to enjoin the City’s attempt to collect Downstream’s debt, I would hold that the claim is a disguised claim to recover damages in the form of relief from an allegedly improperly-imposed debt and is therefore barred by governmental immunity. Downstream has admitted, and the law agrees, that “[t]he due process provisions of the Texas Constitution do not imply a cause of action for damages.” See Smith v. City of League City,
Third, to the extent Downstream seeks to enjoin the City’s collection efforts on the ground that it was denied an administrative hearing, and thus deprived of due process of law, the record refutes its contention. There is no indication in the record that Downstream paid the City the amount of money whose collection it now seeks to enjoin; nor does the record confirm that Downstream was denied an administrative hearing on its complaints that it was overcharged and that the City had wrongfully sought a lien on its property in denial of its due process rights. Rather, the record reflects the opposite. Specifically, on September 26, 2012, at Downstream’s request, the City held the requested administrative hearing on the City’s intent to place a hen on Downstream’s plant for a portion of Downstream’s past-due wastewater bill. The hearing resulted in a decision finding that Downstream owed the City amounts in excess of $200,000 and allowing the City to place the lien on Downstream’s property in the requested amount of $100,000.
Finally, to the extent Downstream is attempting to raise an inverse condemnation claim alleging that the City has unconstitutionally taken or burdened its property — also artfully cast as a due process claim — I would hold that the district court lacked jurisdiction to consider this claim as a matter of law. “A county court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.” Tex. Gov’t Code Ann. § 25.1032(c) (Vernon Supp.2013).
For the foregoing reasons, I would dismiss Downstream’s due process claims as affirmatively negated by the record.
B. Equal Protection
Downstream also contends that the City has violated its constitutional right to
“[T]he equal protection clause of the state constitution directs governmental actors to treat all similarly situated persons alike.” City of Houston v. Johnson,
Here, the record shows that Downstream’s Industrial Waste Permit authorizes it “to discharge into the City’s collection system raw liquid waste in accordance with the effluent limitation, monitoring requirements and other conditions” set forth in the Permit. The Permit is circumscribed by the City’s Code of Ordinances, Chapter 47 (“Water and Sewers”), Article V (“Disposal of Industrial Wastes Through City Sewer System”), and by the federal Clean Water Act.
Downstream admits it accepted waste that was outside the limits of its Permit. Specifically, in his affidavit to the Houston Police Department, Downstream’s president Dan Noyes judicially admitted that, on the afternoon of May 25, 2010, Downstream received from a G.I. Environmental truck “approximately 1000-2000 gallons” of waste that was at first normal in appearance, “but then turned nasty & malodorous with an industrial type odor” and had an appearance “darker than usual.” Downstream also admitted in its original petition that, on May 25 and 26, 2010, G.I. Environmental trucks delivered gallons of “non-conforming waste” and that “[t]he non-conforming material was very dark and smelled like onions. It was highly odorous. When the non-conforming material was diluted, it turned from black to green.”
When G.I. Environmental filed suit against Downstream over the May 25 and May 26 incidents, Downstream counterclaimed, alleging that the non-conforming waste it received wаs a result of G.I. Environmental’s negligent “failure to wash out their truck after hauling hazardous indus
Downstream does not. claim that it belongs to a suspect class or that the constitutional rights the City allegedly violated were fundamental. Therefore, it can establish that it was denied equal protection only by showing that the City had no rational basis for its ordinances circumscribing Downstream’s permit to discharge treated wastewater into the City’s sewer system. See Kadrmas,
Moreover, Downstream has alleged no facts that support its claim that the City violated its equal protection rights by “willfully engaging] in the intentional harassment of Downstream’s business by termination of wastewater services, issuing frivolous violations, illegal sampling, non-approved testing of samples, and overcharging in in. the amount of $286,-296.40” — and the acknowledged emergency circumstancеs of the City’s actions refute any such, allegation. Downstream has recited no facts to support its conclusory allegation that City employees engaged in a “disparagement campaign” against it or that it “has been singled out for maltreatment, bullying and harassment.” Nor has Downstream set forth any basis for its contentions that “[n]o other industrial customer in the City has been treated like Downstream” and that the closure of Downstream’s wastewater service on May 26, 2010 — the second consecutive day on which Downstream discharged hazardous industrial waste into the City’s sewer system that Downstream admits caused pollution damages to its plant operations and the shut down by the City — “violates the equal protection clause, Article I, Section 3 of the Texas Constitution.”
Contrary to Downstream’s equal protection allegations, no rational governmental entity could deem Downstream’s violations of the City’s ordinances designed to protect the public health and safety to be “frivolous violations” when those violations permitted large amounts of hazardous industrial waste to be discharged by Downstream into the City’s waste-wаter treatment system. The record demonstrates that the City shut down Downstream’s plant until the source and nature of the
A court may grant a plea to the jurisdiction without affording the plaintiff an opportunity to amend when “the pleadings affirmatively negate the existence of jurisdiction.” Miranda,
Conclusion
I would hold that Downstream has failed to state a constitutional due process or equal protection claim and that its claims cannot be restated to support a constitutional claim over which the Texas state courts have jurisdiction. Therefore, I would reverse the judgment of the trial court denying the City’s plea to the jurisdiction, and I would render judgment dismissing Downstream’s suit for lack of subject matter jurisdiction.
. Article I, section 19 of the Texas Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const, art. I, § 19. Article 1, section 3 of the Texas Constitution provides that ‘‘[a]ll free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” Tex. Const, art. I, § 3.
. Downstream could have filed a declaratory judgment action seeking to void "the City's administrative actions regarding rate increases and frivolous violations,” but it did not. However, it could not have recovered damages even if it had filed such an action. "The Declaratory Judgments Act ('DJA') provides an express waiver of governmental immunity for declaratory relief, but not for money damages.” Gatesco, Inc. v. City of Rosenberg,