Affirmed and Opinion filed January 15, 2004.

 

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-03-00022-CV

____________

 

THE CITY OF HOUSTON, Appellant

 

V.

 

CLEAR CHANNEL OUTDOOR, INC., Appellee

 

 

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 02-48557

 

 

O P I N I O N

Appellant, the City of Houston, brings this interlocutory appeal from the trial court=s denial of a plea to the jurisdiction.  Houston pleaded sovereign immunity under Texas Local Government Code section 51.075.  We conclude the trial court did not err in denying the plea and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Houston contracted with Clear Channel Outdoor, Inc. to purchase a billboard for a reconstruction project.  Months later, Houston contacted Clear Channel and informed it that because the billboard was impermissible, Houston was not obligated to compensate the owner for any illegal improvement.  After Houston refused to pay, Clear Channel sued Houston for breach of contract.  Houston then filed a plea to the jurisdiction, in which it claimed sovereign immunity under Texas Local Government Code section 51.075.^[1]  The trial court denied the plea, and Houston filed this interlocutory appeal.

DISCUSSION

Houston=s sole issue on appeal is that the statutory language of section 51.075 dictates that Houston is immune from suit.^[2]  In determining this issue, this Court must revisit our earlier opinion in Jackson v. City of GalvestonCin which we found Asue and be sued@ did not waive sovereign immunityCto consider the impact of the Texas Supreme Court=s more recent rulings in this area.  See Jackson v. City of Galveston, 837 S.W.2d 868, 871 (Tex. App.CHouston [14th Dist.] 1992, writ denied).  As we discuss below, we find, based on the Texas Supreme Court=s two influential opinions in Federal Sign v. Texas Southern University and Missouri Pacific Railroad Company v. Browns Navigation District (AMoPac@), that Houston waived its sovereign immunity.  Fed. Sign v. Tex. S. Univ., 951 S.W.3d 401, 405 (Tex. 1997), superseded by statute as stated in Gen. Servs. Comm=n v. Little-Tex Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001); Mo. Pac. R.R. Co. v. Browns Navigation Dist., 453 S.W.2d 812 (Tex. 1970).

Before addressing whether the statute=s language waives Houston=s sovereign immunity, we first note that in Texas, a city is entitled to sovereign immunity.  In City of Galveston v. Posnainsky, the Texas Supreme Court first acknowledged a city=s sovereign immunity.  62 Tex. 118 (1884).  Municipal corporations Aexercise powers conferred on them for purposes essentially public@ and these municipalities should be Adeemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute[.]@  Id. at 127.  Recently, the Texas Supreme Court reaffirmed the fact that cities enjoy sovereign immunity.  See San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex. 1996) (holding A[c]ities and counties enjoy sovereign immunity@).  Being a city, Houston is entitled to sovereign immunity.

We now must determine whether Houston=s immunity is waived, thus allowing Clear Channel to proceed with its suit.  As a general rule, sovereign immunity covers two principles that protect municipalities in suits for money damages: immunity from liability and immunity from suit.  Fed. Sign, 951 S.W.3d at 405.  Immunity from liability shields the municipality from monetary judgments, even if the Legislature has expressly given consent to sue.  Gen. Servs. Comm=n, 39 S.W.3d at 594.  So, simply by contracting with a private party, Houston waived immunity to liability.^[3]  On the other hand, immunity from suit prevents a suit against the municipality unless the Legislature expressly consents to the suit.^[4]  See id.

The real issue in this case boils down to whether Houston=s sovereign immunity from suit is waived.  Immunity from suit must be waived by clear and unambiguous language.  Tex. Loc. Gov=t Code ' 311.034; Fed. Sign, 951 S.W.2d at 405; City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995) (finding that clear and unambiguous language for waiving immunity from suit applies to other governmental entities besides the State); Tex. Natural Res. Conservation Comm=n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994).  Accordingly, we must determine whether the language,  A[t]he municipality may plead and be impleaded in any court,@ clearly and unambiguously waives immunity from suit.  Tex. Loc. Gov=t Code ' 51.075.

We first find guidance to whether this language waives immunity in the landmark Texas Supreme Court case of MoPac.  There, the relevant statute stated that navigation and canal commissioners may Asue and be sued@ in Texas courts.  MoPac, 453 S.W.2d at 813.  Without further discussion, the Texas Supreme Court found the statute was Aquite plain and gives general consent@ for suit in Texas courts.  Id.  Since MoPac, most courts have construed similar statutes with the words Asue and be sued@ as granting a general waiver of suit.  See Welch v. Coca-Cola Enters., 36 S.W.3d 532, 537B38 (Tex. App.CTyler 2000, pet. overruled); Bates v. Tex. State Tech. Coll., 983 S.W.2d 821, 827 (Tex. App.CWaco 1998, writ denied); Engleman Irrigation Dist. v. Shields Bros., 960 S.W.2d 343, 348 (Tex. App.CCorpus Christi 1997, writ overruled).  Even though there was little discussion in MoPac as to the court=s reasoning or analysis, MoPac remains good law. 

In fact, in 1997, the Texas Supreme Court had a second opportunity in Federal Sign to address this issue; the court could have denounced MoPac, but it did not.  Fed. Sign, 951 S.W.2d at 408.  Instead of criticizing its holding, the Court reaffirmed that A>sue and be sued= met the legislative permission requirement@ to waive  sovereign immunity.  Id.  Even further, the concurrence by Justices Hecht, Phillips, Cornyn, and Owen discussed the fact that MoPac may have waived all governmental immunity for contract suits by authorizing the suit of particular agencies.  Id. at 413B14 (Hecht, J., concurring).  Even with the possible blanket waiver, these justices again did not take issue with MoPac.

Following the lead of MoPac and Federal Sign, several sister appellate courts have interpreted Aplead and be impleaded@ as a waiver of sovereign immunity.  See Goerlitz v. City of Midland, 101 S.W.3d 573, 577 (Tex. App.CEl Paso 2003, pet. filed); Knowles v. City of Granbury, 953 S.W.2d 19, 22 (Tex. App.CFort Worth 1997, writ denied); Avmanco v. City of Grand Prairie, 835 S.W.2d 160, 164B65 (Tex. App.CFort Worth 1992, writ denied); see also City of Garland v. Shierk, No. 05-99-00258-CV, 2000 WL 721602, at *2 (Tex. App.CDallas June 6, 2000, pet. denied) (not designated for publication).  Each case reiterates that the statute waives immunity based on the MoPac decision and the words Aplead and be impleaded.@  See id.  And each, therefore, concludes that the municipality has waived immunity to suit.  See id.

Following a different path than the Texas Supreme Court and the majority of intermediate appellate courts was our holding in Jackson, the Dallas Court of Appeals= holding in Reata, and the Waco Court of Appeals= holding in Tooke.  See City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex. App.CDallas 2002, pet. filed); City of Mexia v. Tooke, 115 S.W.3d 618 (Tex. App.CWaco 2003, pet. filed).  Like Jackson, Reata and Tooke interpreted the language Aplead and be impleaded@ as not granting a waiver of sovereign immunity.  See Reata, 83 S.W.3d at 398B400; Tooke, 115 S.W.3d at 623B24. 

In Jackson, we looked at a very similar statute which states the following: AThe municipality may sue and be sued, implead and be impleaded, and answer and be answered in any matter in any court or other place.@  Tex. Loc. Gov=t Code ' 51.013.  Even though Asue and be sued@ and Aplead and be impleaded@ were included in this statute, this Court held the statute did not waive sovereign immunity.  See Jackson, 837 S.W.2d at 871.  We did not follow MoPac, nor did our opinion even cite to MoPac.  See id.  Instead, in response to the appellant=s challenge to the constitutionality of the doctrine of sovereign immunity, we left the waiver of sovereign immunity as a matter to be addressed by the LegislatureCnot intermediate appellate courts.  See id. 

In Reata, the Dallas Court of Appeals followed our reasoning.  See Reata, 83 S.W.3d at 398.  There, the court held the language Asue and be sued@ spoke to the municipality=s capacity to be sued after it has waived immunity to suit.  See id. at 398.  Reata also ignored MoPac and Federal Sign, in which the Texas Supreme Court held Asue and be sued@ was sufficient language to waive immunity from suit.  See MoPac, 453 S.W.2d at 813B14; Fed. Sign, 951 S.W.2d at 405.  Additionally, the Reata court directly contradicted MoPac when it stated the Aprovisions do not expressly waive the City=s sovereign immunity.@  See Reata, 83 S.W.3d at 398.

In Tooke, the Waco Court of Appeals did address the Texas Supreme Court precedent of MoPac.  See Tooke, 115 S.W.3d at 621.  However, the Tooke court used a completely different approach by acknowledging that Asue and be sued@ language waives sovereign immunity, but Aplead and be impleaded@ does not.  Id. at 622B23.  The Tooke court concluded that if Asue@ and Aplead@ are interpreted to have the same meaning, the court Arun[s] afoul@ of settled statutory construction principles.  Id. at 623.  Additionally, the Waco court applied the four Supreme Court factors to consider whether certain language in a statute is an express and unambiguous waiver of sovereign immunity.  Id.  These are the four factors: (1) the immunity must be waived beyond doubt, (2) ambiguity in a statute leans toward retaining immunity, (3) if the Legislature insists on a State being joined in the lawsuit, immunity is waived, and (4) if a monetary cap or scheme is provided in the statute, the Legislature probably intended to waive immunity.  Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696B98 (Tex. 2003).  The court then concluded that Aplead and be impleaded@ did not waive sovereign immunity.  See Tooke, 115 S.W.3d at 623B24.

We now must decide whether we will follow our precedent in Jackson, or, instead, follow the Texas Supreme Court and the majority of intermediate appellate courts by holding Aplead and be impleaded@ does waive sovereign immunity.  We will follow the Texas Supreme Court. 

As stated earlier, MoPac holds that the language Asue and be sued@ adequately waives sovereign immunity.  MoPac, 453 S.W.2d at 813.  We acknowledge the statute in question here, section 51.075, includes only the language Aplead and be impleaded,@ and not the language Asue and be sued,@ but for the reasons noted, we find no distinction.  Lawyers and judges readily draw distinctions between the words Asue@ and Aplead.@  In the vernacular of the legal profession, the former means Ato commence or to continue legal proceedings for recovery of a right,@ while the latter means Ato make, deliver, or file any pleading; to conduct the pleadings in a cause.@  See Black=s Law Dictionary 1284, 1037 (5th ed. 1978).  Thus, among professionals, Asuing@ is bringing a civil suit, while Apleading@ is interposing a pleading in the civil action.  But in ordinary usage, Aplead@ may also mean Ato maintain (as a case or a cause) in a court of law or other tribunal.@  See Merriam-Webster=s Collegiate Dictionary 891 (10th ed. 2002).  In other words, though experts attribute different meanings to the words Aplead@ and Asue,@ in laymen=s terms, they mean the same thing.  And, neither party has provided us, nor can we find, any reason why the Legislature removed the words Asue and be sued@ for home-rule municipalities, such as Houston, but kept the language for Type A and Type B municipalities.  See Tex. Loc. Gov=t Code '' 51.013, 51.033.^[5]  In the context of this statute, therefore, we find no difference in the words Aplead@ and Asue.@

Finding no difference in the language Asue and be sued@ and Aplead and be impleaded,@ we are compelled to follow the Texas Supreme Court=s interpretation in MopacCespecially considering that the Texas Supreme Court passed up the opportunity to revisit and change its decision.  Furthermore, this interpretation seems to be in line with the Legislature=s intent.  And we do not believe, as the Reata court suggests, that Asue and be sued@ goes to the municipality=s capacity after immunity has been waived.  We acknowledge that the Legislature could have been clearer in its choice of words.  But, according to the Texas Supreme Court=s interpretation, Asue and be sued@ clearly and unambiguously waives sovereign immunity, and the Legislature has been aware of this interpretation for many years.  If the lawmakers did not mean for sovereign immunity to be waived in this statute, they could have chosen more explicit language to convey that intention.

In conclusion, we hold that Asue and be sued@ or Aplead and be impleaded@ is sufficient language to waive immunity from suit.  See MoPac, 453 S.W.2d at 813; Fed. Sign, 951 S.W.2d at 405.  Applying this interpretation to our case, Houston has waived sovereign immunity to be sued.  Therefore, we overrule Houston=s only issue and affirm the judgment of the trial court.

 

 

 

 

/s/      Wanda McKee Fowler

Justice