Opinion by
Desiree Martinez appeals from the trial court’s order granting the City of San Antonio’s plea to the jurisdiction, motion for no-evidence summary judgment, and traditional motion for summary judgment. We affirm.
Background
This lawsuit arises from the attempted sexual assault of Desiree Martinez. On July 3, 1997, Richard Diaz, a thirty-nine-year-old man, called Martinez, a fourteen-year-old girl, and asked if she would like to go “have a cold one”, an offer that she accepted. When Diaz arrived at her house, Martinez gathered her belongings and told her parents that she was going to a “staff meeting.” Diaz and Martinez then went to Diaz’s home, stopping only to purchase alcohol. After several hours of drinking, Diaz attempted to sexually assault Martinez. Martinez, however, fought back and fled the house. Martinez reported the attack to the Kirby Police Department, and Diaz was later convicted of attempted sexual assault.
In November 2001, Martinez filed a civil lawsuit against Diaz, Diaz’s business (Richard Diaz and Diana Huron Alonso d/b/a Diaz and Associates), and the University of Texas System. In January 2002, Martinez filed an amended petition, adding the City of San Antonio as a defendant. According to the amended petition, the City of San Antonio Police Department was awarded a federal grant to create a program, administered by the City of San Antonio Office of Community Initiatives, to curb gang violence. Martinez alleges that the Office of Community Initiatives, in turn, received assistance from the Hispanic Research Center at the University of Texas at San Antonio. According to Martinez, as part of this initiative to curb gang violence, she was hired during the summer by the City of San Antonio and was supervised by Diaz, a convicted sex offender. Thus, she claims that the City was negligent in hiring Diaz and in allowing a convicted sex offender to come into contact with and supervise her, a fourteen-year-old-girl.
In response, the City filed a plea to the jurisdiction, or alternatively, a traditional and no-evidence motion for summary judgment. Attached to the City’s plea and motion was an affidavit by Daniel G. Aker-oyd, a lieutenant with the police department and program director of the Gang Rehabilitation Assessment and Services Program (“GRAASP”) in the Youth Crime Services Unit. In his affidavit, Akeroyd described the program:
GRAASP was a comprehensive, community-wide effort designed to prevent and suppress gang activity and crime through various forms of intervention. Key intervention activities included services for the participant gang members and their families, including counseling, medical and psychological assessments, crisis intervention and job readiness training, as well as community mobilization strategies. Prior to the formation of GRAASP, the San Antonio Police Department generally responded to gang activity and crime with various forms of suppression, e.g. detention and arrest. With GRAASP, the police department had access to an array of intervention strategies, and thereby, different methods of police protection and services for the purpose of the health, safety, and welfare, not only for the urban community but also for the public at large. There were five cities participating in the grant program.
Akeroyd explained that the program was funded by the U.S. Department of Justice,
Akeroyd also affirmed that neither Martinez nor Diaz (including his business Diaz & Associates) had ever been employed by the City or Community Initiatives. 1 Further, the City “was not involved in the screening of UTSA’s staff for employment.” According to Akeroyd, UTSA’s role “was to evaluate data pertaining to the GRAASP program and report on the impact of the program on the community, crime rates, and the youth.” It was independent from both the City and the police department “in order to ensure objective reporting of the results of the GRAASP program.”
Attached to Akeroyd’s affidavit was a true and correct copy of the grant application. According to the application, the objectives of GRAASP were to recruit “gang member participants, with selection based upon probation or parole status, degree of involvement in gang activity and crime, residence in the target neighborhood, 2 and the severity of the gang member’s criminal record.” Then, each gang member participant would be assessed through “an assessment interview, and when appropriate, an educational, vocational, medical or psychological assessment.” After being assessed, GRAASP would develop goals and a case strategy for each participant. The objective was to have at least 85% of all participants enroll or participate in “meaningful activities.” Thus, the objective was for at least 85% of participants to be employed or seeking employment, enrolled in school, GED classes, vocational courses or other forms of education. Each participant would be monitored for “present criminal activity and arrests in order to determine an increase or decrease in participant crime as well as crime in the target neighborhood.” Another objective of the program was to prevent gang violence by participating in “neighborhood association meetings, COP meetings, National Night Out, and neighborhood clean-up efforts.” The police department was listed as the “lead agency” and maintained the grant funds for the project.
In its motion, the City argued that Martinez’s claims were barred because Martinez had not complied with the Texas Tort Claims Act. In response, Martinez claimed that because GRAASP is a proprietary function of the City, the Act does not apply. The trial court agreed with the City and dismissed Martinez’s claims. It then severed the claims against the City from the underlying cause. Martinez appeals. 3
Governmental or Proprietary Function?
Sovereign immunity protects the State from lawsuits for money damages.
Reata Constr. Corp. v. City of Dallas,
Initially, sovereign immunity was a common-law doctrine that developed without any legislative or constitutional enactment. Id. Recognizing that sovereign immunity is a common-law doctrine, the Texas Supreme Court has “not foreclosed the possibility that the judiciary may modify or abrogate such immunity by modifying the common law.” Id. at 375. As such, the judiciary remains responsible for defining “the boundaries of the common-law doctrine and ... determining] under what circumstances sovereign immunity exists in the first instance.” Id. However, despite this responsibility, the supreme court has “generally deferred to the Legislature to waive immunity because the Legislature is better suited to address the conflicting policy issues involved.” Id.
One such legislative waiver of immunity is the Texas Tort Claims Act.
See
Tex. Civ. PRAC. & Rem.Code Ann. 101.001-.109 (Vernon 2005 & Supp.2006). When a municipality commits a tort while engaged in a governmental function, its liability is determined by the provisions of the Texas Tort Claims Act.
See id.
101.0215(a) (Vernon 2005);
Tex. River Barges v. City of San Antonio,
When a municipality commits a tort while engaged in a proprietary function, it is liable to the same extent as a private entity or individual.
See Dilley v. City of Houston,
However, a court need not consider classification of an activity under common law if the activity is defined by statute. As the Texas Supreme Court has recently explained, the “Texas Constitution authorizes the Legislature to ‘define for all purposes those functions of a municipality that are to be considered governmental and those that are proprietary, including reclassifying a function’s classification assigned under prior statute or common
In enacting the Texas Tort Claims Act, the Legislature defined proprietary functions as “those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality.” 6 Tex. Civ. Peag. & Rem.Code Ann. § 101.0215(b) (Vernon 2005). For purposes of tort liability, the Legislature defined governmental functions as “those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public.” Id. § 101.0215(a). It included the following among a municipality’s governmental functions: “police ... protection and control”; and “community, neighborhood, or senior citizen centers.” Id. § 101.0215(a)(1), (17). The City argues that GRAASP is included within these definitions of governmental functions. 7 Martinez, on the other hand, points to the common-law definition and argues that GRAASP was created for the benefit of those within its corporate limits, and not as an arm of the government.
In considering whether GRAASP is a governmental or proprietary function, we note that a plaintiff may not “split various aspects of [a municipality’s] operation into discrete functions and recharac-terize certain of those functions as proprietary.”
City of San Antonio v. Butler,
Although not a pure “arrest and incarcerate” method of law enforcement, GRAASP was nevertheless a function of law enforcement and a valid governmental use of police power.
See
Tex. Civ. PRAC. & Rem.Code Ann. § 101.0215(a)(1) (Vernon 2005) (listing police protection and control as a governmental function). The objective of the program was to intervene in the lives of gang members, thereby reducing gang violence and crime in the City. It was a crime prevention and reduction program, implemented and administered by the police department, funded by the Department of Justice, and it benefited the general public. That it also provided counseling services and job training does
Conclusion
Because GRAASP is a governmental function under the Texas Tort Claims Act, in order to bring suit, Martinez was required to follow the provisions of the Act. Martinez, however, admits that she did not comply with the Act’s notice provision. As such, the trial court did not err in dismissing Martinez’s claims against the City. 8
Notes
. In response to Martinez’s allegation in her petition, Akeroyd also affirmed that Community Initiatives did not administer GRAASP, and even if it had, Community Initiatives never employed Martinez.
. Certain neighborhoods in San Antonio with high levels of gang activity were specifically targeted by the program.
. After the trial court granted the City’s summary judgment and severed the cause, Martinez took a post-answer default judgment against Diaz and nonsuited the remaining defendants.
. Pursuant to the Texas Tort Claims Act, a plaintiff must give a governmental unit notice of a claim no later than six months after the day the event giving rise to the claim occurs unless the governmental unit had actual notice of the event. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005). On appeal, Martinez acknowledges that if the Texas Tort Claims Act applies, "she did not meet the requirements of the Act, and the relief she seeks on appeal should be denied.”
. Thus, in Tooke v. City of Mexia, 197 S.W.3d 325, 343-44 (Tex.2006), the supreme court held that because the Legislature has statutorily defined "garbage and solid waste removal, collection, and disposal” as a governmental function in the Texas Tort Claims Act and because that definition described the services one of the parties had agreed to provide, the court saw "no reason to think that the classification would be different under the common law.”
. The Legislature listed the following examples as proprietary functions: "the operation and maintenance of a public utility”; "amusements owned and operated by the municipality”; “any activity that is abnormally dangerous or ultrahazardous.” Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(b) (Vernon 2005).
. In its brief, the City also argues that pursuant to section 101.0215(a)(34) of the Texas Tort Claims Act, GRAASP should be considered a "community development or urban renewal activities undertaken by municipalities and authorized under Chapters 373 and 374, Local Government Code.” However, the City does not point to anything in the record reflecting that GRAASP was a program authorized under Chapters 373 and 374 of the Local Government Code. See Tex. Loc. Gov’t Code Ann. § 373.005(a) (Vernon 2005) ("To conduct work or activities ..., a municipality may adopt a community development program by ordinance or resolution.”); id. § 374.011 (providing that before municipality may exercise power under chapter 374’s Urban Renewal, it must adopt a resolution and hold an election).
. Having determined that Martinez did not comply with the Act’s notice provision, we need not consider the other issues presented.