City of Houston Sovereign Immunity Cases
LEADING SOVEREIGN
IMMUNITY CASE

Tooke v. City of Mexia,
No. 03-0878 (Tex. June 30, 2006)  

Holding: Scores of Texas statutes
provide, variously, that individuals
and entities, public and private, may
(“sue and (or) be sued”, “(im)plead
and (or) be impleaded”, “be
impleaded”, “prosecute and defend”,
“defend or be defended”, “answer
and be answered”, “complain and
(or) defend”, or some combination of
these phrases, in court.[1] The
phrases are also used in municipal
charters and ordinances and in
corporate articles and bylaws. Read
in context, they sometimes waive
governmental immunity from suit,
sometimes do not, and sometimes
have nothing whatever to do with
immunity, referring instead to the
capacity to sue and be sued or the
manner in which suit can be had (for
example, by service on specified
persons). Because immunity is
waived only by clear and
unambiguous language,[2] and
because the import of these phrases
cannot be ascertained apart from the
context in which they occur, we hold
that they do not, in and of
themselves, waive immunity from
suit.”)
LEADING CASE

Reata v. City of Dallas,
No. 02-1031 (Tex. June 30, 2006)
(substituted opinion)

Holding:The issue in this case is
whether the City of Dallas has
governmental immunity from suit for
claims by Reata Construction
Corporation arising from the City’s
alleged negligence. The court of
appeals held that the City had
immunity. We conclude that the City
does not have immunity from suit as
to Reata’s claims which are germane
to, connected with, and properly
defensive to the City’s claims, to the
extent Reata’s claims offset those
asserted by the City. We reverse the
court of appeals’ judgment and
remand the case to the trial court for
further proceedings.

Reata also claims the City’s immunity
from suit is waived by section 51.075
of the Local Government Code, which
provides that a home-rule municipality
“may plead and be impleaded in any
court.” See Tex. Loc. Gov’t Code §
51.075. However, waiver of immunity
for tort claims is governed by the
Texas Tort Claims Act. See Tex. Civ.
Prac. & Rem. Code ch. 101; Miranda,
133 S.W.3d at 224-25 (holding that
the governmental entity was immune
from suit for a tort unless it was
expressly waived by the Tort Claims
Act). Under rules of statutory
construction, we give precedence to
the Tort Claims Act over section
51.075 because the Tort Claims Act is
the later-enacted, more specific
statute regarding waiver of immunity
in tort cases. See Tex. Gov’t Code §
311.026. Moreover, in Tooke v. City
of Mexia, ___ S.W.3d ___, ___ (Tex.
2006), we have held that the phrase
“plead and be impleaded” in section
51.075 does not clearly and
unambiguously reflect legislative
intent to waive immunity from suit. See
Taylor, 106 S.W.3d at 697-98 (Tex.
2003).

Concurring opinion by Justice Brister

Opinion of the Dallas Court of Appeals

City of Houston v. United Water Services, Inc. No 04-0547
(Tex. Aug. 31, 2006)

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the
petition for review and without hearing oral argument, the Court reverses
the court of appeals' judgment and remands the case to the trial court.

United Water Services, Inc. sued the City of Houston for breach of a
contract to operate and maintain a water purification plant. The City filed a
counterclaim for breach of the same contract and a plea to the jurisdiction
based on its governmental immunity.

The trial court granted the plea to the jurisdiction and dismissed United
Water Services’ claim, and the City nonsuited its counterclaim. The court
of appeals reversed the trial court’s order, holding that the City’s immunity
from suit was waived by the City’s Charter that authorizes it to “sue and be
sued.” 137 S.W.3d 747, 757. United Water Services also argued in the
court of appeals that the City consented to jurisdiction by filing a
counterclaim, but the court of appeals did not reach that argument.

For the reasons explained in Tooke v. City of Mexia, ___ S.W.3d ___
(Tex. 2006), we hold that the City Charter does not contain a clear and
unambiguous waiver of immunity. See also City of Houston v. Jones, ___
S.W.3d ___ (Tex. 2006).

While this case has been pending on appeal, we have decided Reata
Construction Corp. v. City of Dallas, ___ S.W.3d ___ (Tex. 2006), and the
Legislature has enacted sections 271.151-.160 of the Local Government
Code. Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex. Gen.
Laws 1548, 1549. United Water Services should have the opportunity to
argue in the trial court that the City’s immunity from suit either does not
exist pursuant to our decision in Reata or that it has been waived by
sections 271.151-.160 of the Local Government Code, which provide that
there is no immunity from suit for certain claims against local
governmental entities, including municipalities.[1]

Accordingly, we grant the City’s petition for review, and without hearing
oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’
judgment and remand the case to the trial court for further proceedings.
OPINION DELIVERED: August 31, 2006

Opinion below: United Water Servs., Inc. v. City of Houston,
No. 01-02-01057-CV, 137 S.W.3d 747 (Tex. App.--Houston [1st Dist.]
2004, pet. granted) (stating the language “sue and be sued” constitutes
“explicit waiver language” under Missouri Pacific and waives governmental
immunity from suit). See Missouri Pacific Railroad Co. v. Brownsville
Navigation District, 453 S.W.2d 812, 813 (Tex. 1970).

The City of Houston v. Boyer, No. 04-1021 (Tex. June 30, 2006)
Boyer, Inc. sued the City of Houston for breach of a contract to excavate a
tunnel downtown. The trial court overruled the City’s plea to the
jurisdiction based on immunity from suit, and the City took an interlocutory
appeal. The court of appeals affirmed, holding that the City’s immunity
from suit is waived by a provision in its charter authorizing it to “sue and
be sued, . . . contract and be contracted with, implead and be impleaded
in all courts and places and in all matters whatever”.[1] 2004 Tex. App.
LEXIS 8785, 2004 WL 2186770, No. 01-04-00153-CV, at *2 (Tex. App.–
Houston [1st Dist.] Sept. 30, 2004). Boyer argues that the City’s immunity
is also waived by section 51.075 of the Local Government Code, an issue
not reached by the court of appeals. For the reasons explained today in
Tooke v. City of Mexia, ___ S.W.3d ___ (Tex. 2006), we disagree that the
City’s charter or section 51.075 contains a clear and unambiguous waiver
of immunity from suit. We do not reach the question whether a municipality
may waive immunity from suit; we hold only that the charter text is not such
a waiver.

Opinion below: City of Houston v. Boyer, Inc., 2004 Tex. App. LEXIS 8785,
2004 WL 2186770, No. 01-04-00153-CV (Tex. App.–Houston [1st Dist.]
Sept. 30, 2004)

City of Houston v. Jones, No. 04-0879 (Tex. June 30, 2006)

Kenneth S. Jones sued the City of Houston on tort claims arising out of
demolition work, settled those claims, then sued the City for breach of the
settlement agreement. The trial court overruled the City’s plea to the
jurisdiction based on immunity from suit, and the City took an interlocutory
appeal. The court of appeals affirmed, holding that the City’s immunity
from suit is waived by a provision in its charter authorizing it to “sue and
be sued, . . . contract and be contracted with, implead and be impleaded
in all courts and places and in all matters whatever”.[1] 2004 Tex. App.
LEXIS 7493, 2004 WL 1847965, No. 01-03-00831-CV, at *3 4 (Tex. App.–
Houston [1st Dist.] Aug. 19, 2004). The court of appeals did not reach
Jones’s argument that the City is not immune from suit on the settlement
agreement under Texas A & M University–Kingsville v. Lawson, 87 S.W.3d
518 (Tex. 2002). For the reasons explained today in Tooke v. City of
Mexia, ___ S.W.3d ___ (Tex. 2006), we disagree that the City’s charter
contains a clear and unambiguous waiver of immunity from suit. We do not
reach the question whether a municipality may waive immunity from suit;
we hold only that the charter text is not such a waiver.

While this case has been pending on appeal, the Legislature has enacted
sections 271.151-.160 of the Local Government Code, which waive
immunity from suit for certain claims against local governmental entities,
including municipalities. Sections 271.152-.154 “apply to a claim that
arises under a contract executed before [September 1, 2005] . . . if
sovereign immunity has not been waived with respect to the claim” before
that date. Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex.
Gen. Laws 1548, 1549. Jones should have the opportunity to argue in the
trial court that the City’s immunity from suit is waived by these provisions.
The court should also consider whether the City lacks immunity under
Lawson.”

Opinion below: City of Houston v. Jones, 2004 Tex. App. LEXIS 7493,
2004 WL 1847965, No. 01-03-00831-CV (Tex. App.–Houston [1st Dist.]
Aug. 19, 2004)

City of Houston v. Allco, Inc. No. 04-0730 (Tex. June 30, 2006)

Allco, Inc. sued the City of Houston for breach of contract to provide sewer
rehabilitation services and for declaratory judgment. After a bench trial,
the trial court rendered judgment for Allco. The court of appeals affirmed,
holding that the City’s immunity from suit is waived by a provision in its
charter authorizing it to “sue and be sued, . . . contract and be contracted
with, implead and be impleaded in all courts and places and in all matters
whatever”.[1] 2004 Tex. App. LEXIS 5934, 2004 WL 1471818, No. 01-02-
00812-CV, at *3 8 (Tex. App.–Houston [1st Dist.] July 1, 2004). In this
Court, Allco argues that the City’s immunity is also waived by section
51.013 of the Local Government Code, which states that a “municipality
may sue and be sued, implead and be impleaded, and answer and be
answered in any matter in any court or other place.” For the reasons
explained today in Tooke v. City of Mexia, ___ S.W.3d ___ (Tex. 2006),
we disagree that the City’s charter or section 51.013 contains a clear and
unambiguous waiver of immunity from suit. We do not reach the question
whether a municipality may waive immunity from suit; we hold only that the
charter text is not such a waiver.

While this case has been pending on appeal, the Legislature has enacted
sections 271.151-.160 of the Local Government Code, which waive
immunity from suit for certain claims against local governmental entities,
including municipalities. Sections 271.152-.154 “apply to a claim that
arises under a contract executed before [September 1, 2005] . . . if
sovereign immunity has not been waived with respect to the claim” before
that date. Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex.
Gen. Laws 1548, 1549. Allco should have the opportunity to argue in the
court of appeals that the City’s immunity from suit is waived by these
provisions.

Opinion below: The City of Houston v. Allco, Inc., 2004 Tex. App. LEXIS
5934, 2004 WL 1471818, No. 01-02-00812-CV, (Tex. App.–Houston [1st
Dist.] July 1, 2004).

City of Houston v. Clear Channel, No. 04-0406 (Tex. June 30,
2006)

Clear Channel Outdoor, Inc. sued the City of Houston for breach of a
contract to purchase a billboard. The trial court overruled the City’s plea
to the jurisdiction based on immunity from suit, and the City took an
interlocutory appeal. The court of appeals affirmed. 161 S.W.3d 3, 8 (Tex.
App.–Houston [14th Dist.] 2004). Clear Channel contends, and the court
of appeals held, that a city’s immunity from suit is waived by section
51.075 of the Texas Local Government Code. We have rejected that
position today in Tooke v. City of Mexia, __ S.W.3d __ (Tex. 2006).
Although Clear Channel asserted in the trial court that the City’s immunity
is also waived by a provision of its charter authorizing it to “sue or be
sued”, Clear Channel has not made that argument in this Court, and it
was not addressed by the court of appeals.

While this case has been pending on appeal, the Legislature has enacted
sections 271.151-.160 of the Local Government Code, which waive
immunity from suit for certain claims against local governmental entities,
including municipalities, based on agreements “for providing goods or
services”. Tex. Loc. Gov’t Code § 271.151(2). Sections 271.152-.154
“apply to a claim that arises under a contract executed before [September
1, 2005] . . . if sovereign immunity has not been waived with respect to the
claim” before that date. Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2,
2005 Tex. Gen. Laws 1548, 1549. Clear Channel should have the
opportunity to argue in the trial court that the City’s immunity from suit is
waived by these provisions.

Opinion below: City of Houston v. Clear Channel Outdoor, Inc., 161 S.W.
3d 3, 7-8 (Tex. App.-Houston [14th Dist.] 2004) (either “sue and be sued”
or “plead and be impleaded” waives sovereign immunity), rev’d, __ S.W.
3d __ (Tex. 2006) (per curiam).

Other Supreme Court Cases With Houston as  a Party

The City of Houston v. Jackson (Tex. April 7, 2006)
Docket No 04-0465  Supreme Court Briefs
Opinion below: Jackson v. City of Houston, No. 01-02-00879-CV (Tex.App.
--Houston [1st Dist.] April 1, 2004, reversed and rendered)

City of Houston v. Steve Williams, et al, No. 06-0159  
Petition for Review Filed April 4, 2006; eBriefs posted

Supreme Court Overturns Rulings Favorable to Houston
Firefighter in Two Prior Appeals

City of Houston v. Jackson (Tex.  April 7, 2006)    
[fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the
court of appeals below, law of case doctrine does not preclude Texas Supreme Court
from reviewing issue in first, interlocutory appeal]
04-0465 THE CITY OF HOUSTON v. ROBERT JACKSON; from Harris County; 1st
district (01 02 00879 CV, 135 S.W.3d 891, 04 01 04) unopposed motion for leave to
file post submission brief granted
The Court reverses the court of appeals' judgment and dismisses respondent's
statutory penalty claim for want of jurisdiction.
Justice O'Neill delivered the opinion of the Court  (“Section 143.134(h) of the Texas
Local Government Code imposes a $1,000 penalty payable to an aggrieved fire fighter
for each day a department head intentionally fails to implement a decision of the Fire
Fighters’ and Police Officers’ Civil Service Commission (the “Commission”) under
Section 143.131 or a decision of a hearing examiner under Section 143.129 that has
become final. Tex. Loc. Gov’t Code Section 143.134(h). The court of appeals held that
the penalty provision also applies to a grievance examiner’s unappealed
recommendation under Section 143.130 of the Code. 135 S.W.3d 891. We hold that,
by the provision’s plain language, it does not. Accordingly, we reverse the court of
appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of
jurisdiction.”)

Petition for Review Denied by Texas Supreme Court

City of Houston v. Vargas
06-0366  CITY OF HOUSTON v. JOSE VARGAS AND MARIA VARGAS, INDIVIDUALLY
AND AS HEIRS OF JOSE VARGAS, JR.; from Harris County; 1st district (01 04 01173
CV, ___ SW3d ___, 03 16 06) PFR denied 7/7/06

Other City of Houston Cases of Interest (Houston Courts of
Appeals)

City of Houston v. Southern Electrical (Tex.App.- Houston [1st Dist.] Dec.
7, 2006)(Nuchia)
[governmental entity law, sovereign immunity waiver,  plea to the
jurisdiction, Tooke v. City of Mexia]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS: Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00015-CV        City of Houston v. Southern Electrical Services, Inc.,
As Assignee of The Morganti Group, Inc.--Appeal from 157th District
Court of Harris County

City of Houston v. City of Webster (Tex.App.-Houston [14th Dist.] Nov. 14,
2006)(Anderson)
[sovereign immunity law, ILA, appeal not authorized, motion for summary
judgment vs. plea to the jurisdiction; only jurisdictional issues subject to
interlocutory appeal, appeal DWOJ]
DISMISSED: Justice Anderson
Before Justices Anderson, Hudson and Guzman
14-06-00485-CV City of Houston v. City of Webster
Appeal from 334th District Court of Harris County (Hon. Sharon McCally)
("Because Houston Filed a Summary Judgment Motion, It May not Take an
Interlocutory Appeal")

Cronen v. Ray and City of Houston (Tex.App.- Houston [14th Dist.] Sep. 5,
2006)(Anderson)
[governmental entity law, sovereign immunity, panhandling arrests
challenged, false arrest, false imprisonment, negligence, special
exceptions, TTCA, official-capacity claims dismissed, no section 1983
claim pleaded]
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost)
14-05-00788-CV Charles D. Cronen v. John R. Ray and the City of
Houston, Texas
Appeal from 127th District Court of Harris County SHAROLYN P. WOOD
("As all of appellant's causes of action are barred by governmental
immunity, the trial court did not err in granting appellees' Special
Exceptions and Pleas to the Jurisdiction and Alternatively Motions for
Summary Judgment.")
("Appellant's Open Courts argument implicates the third guarantee:
whether sovereign immunity unconstitutionally deprived him of a
meaningful legal remedy. Appellant complains that this court, by upholding
the trial court's dismissal of his causes of action pursuant to sovereign
immunity law, would violate the Open Courts provision. Appellant does not
complain of any legislative action that prevents him from maintaining his
lawsuits. Since appellant does not challenge a legislative act that abridges
a cognizable common law claim, his Open Courts challenge is without
merit. Id.")

City of Houston v. Soriano (Tex.App. - Houston [14th Dist.] Aug. 29, 2006)
(Anderson)
[governmental entity law, workers comp, self-insurance, subrogation, third-
party tortfeasor]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by
Justice Anderson; Before Justices Anderson, Hudson and Edelman
14-05-00161-CV City of Houston v. Dahlia Soriano, Willie O. Thomas,
Nicole Pelrean, and Carl Noon; Appeal from 151st District Court of Harris
County (Judge Caroline Elizabeth Baker)

Lee v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)
[real estate law, municipal ordinance, repair to property, due process]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00366-CV Susan C. Lee v. City of Houston
Appeal from 295th District Court of Harris County (Judge Tracy Kee
Christopher)

City of Houston v. Harris II Majority Opinion  (Tex.App.–Houston [14th
Dist.] March 16, 2006)
City of Houston v. Harris II Concurring Opinion by Justice Edelman
[Texas Tort Claims Act, City held to be immune under the facts of the
case, law of the case doctrine does not apply, trial court’s denial of City
plea to the jurisdiction reversed and case dismissed for want of jurisdiction
REVERSED AND RENDERED: Opinion by Justice Guzman
(Before Justices Edelman, Seymore and Guzman)
14-04-01179-CV City of Houston v. Thomas and Chorlottiea Harris,
Individually and as Next Friend of Joshua Harris, A Minor
Appeal from Co Civil Ct at Law No 3 of Harris

OTHER CASES WITH CITY OF HOUSTON AS A PARTY


Lee v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 8, 2006, pet denied 12/1/06)
(Fowler)
[real estate law, municipal ordinance, repair to property, due process]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00366-CV Susan C. Lee v. City of Houston
Appeal from 295th District Court of Harris County (Judge Tracy Kee Christopher)

City of Houston v. Levingston (Tex.App- Houston [1st Dist.] Jul. 27, 2006)(Jennings)
(Whistleblower Act)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Taft, Jennings and Bland
01-03-00678-CV City of Houston v. Sam Levingston, DVM
Appeal from 125th District Court of Harris County (Judge John Coselli)

Duncan v. City of Houston (Tex.App.-Houston [1st Dist.] Jan. 26, 2006)(Jennings)
[TTCA notice requirement, sidewalk, premises liability, personal injury]
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Nuchia, Jennings and Higley
01-05-00079-CV        Alvin Charles Duncan v. City of Houston
Appeal from 133rd District Court of Harris County (Hon. Lamar McCorkle)


City of Houston v. U.S. FIler Wastewater Group, Inc. (Tex.App.- Houston [1st Dist.] Jen.
5, 2006)(Radack)
(sovereign immunity, plea juris properly denied, presuit discovery)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00433-CV City of Houston v. U.S. Filter Wastewater Group, Inc.
Appeal from 334th District Court of Harris County (Hon Sharon McCally)
Tort Claims Act Verdict Against City

Nov. 20, 2006. Jury awards 2.5 million
to parent and estate of 13-year old who
was sucked into culvert and drowned.
Reduced to 70% based on teenager's
negligence.
Logan Jones v. City of Houston.
No. 2004-728; 215th District Court,
Harris County;

City of Houston v. Soriano (Tex.App. -
Houston [14th Dist.] Aug. 29,
2006)(Anderson)
[governmental entity law, workers comp,
self-insurance, subrogation, third-party
tortfeasor]
AFFIRMED IN PART; REVERSED &
REMANDED IN PART: Opinion by
Justice Anderson
Before Justices Anderson, Hudson and
Edelman
14-05-00161-CV City of Houston v.
Dahlia Soriano, Willie O. Thomas, Nicole
Pelrean, and Carl Noon
Appeal from 151st District Court of
Harris County (Judge Caroline Elizabeth
Baker)