Sovereign Immunity
Sovereign immunity
protects the State, its agencies, and its officials from lawsuits for damages absent legislative consent. Fed. Sign
v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). The sovereign immunity of
the State inures to the benefit of a municipality to the extent the municipality
engages in the exercise of governmental functions. See City of Tyler v.
Likes, 962 S.W.2d 489, 501 (Tex. 1997). According to the supreme court,
“[s]overeign immunity embraces two principles: immunity from suit and immunity
from liability. First, the State retains immunity from suit, without
legislative consent, even if the State's liability is not disputed. Second, the
State retains immunity from liability though the Legislature has granted consent
to the suit.” Fed. Sign, 951 S.W.2d at 405 (citations omitted) (emphasis
omitted). When the State contracts with a private person, it waives immunity
from liability, but not immunity from suit. See Fed. Sign, 951 S.W.2d at
408. Immunity from suit bars a suit against the State unless the State expressly
gives its consent to the suit. Fed. Sign, 951 S.W.2d at 405. The State
may consent to suit by statute or by legislative resolution. Fed. Sign,
951 S.W.2d at 405. Express consent is required to show that immunity from a
breach of contract suit has been waived. See Travis County v. Pelzel &
Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). Legislative consent for suit
or any other sovereign immunity waiver must be “by clear and unambiguous
language.” Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2004); Pelzel, 77
S.W.3d at 248; Fed. Sign, 951 S.W.2d at 405. When determining whether
there is a clear and unambiguous waiver of immunity from suit, we generally
resolve any ambiguity in favor of retaining immunity. See Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).
McMahon
contends section 51.075 of the Texas Local Government Code waives the City's immunity from suit. Section 51.075 provides
that a home-rule municipality “may plead and be impleaded in any court.” Tex.
Local Gov't Code Ann. § 51.075. In construing this language, the Waco Court of
Appeals previously concluded section 51.075 is not a clear and unambiguous
waiver of the City's immunity from suit. See City of Mexia v.
Tooke, 115 S.W.3d 618, 622 (Tex. App.-Waco 2003, pet. granted). We agree
with the Waco court.
Section 51.075 is, at a
minimum, ambiguous as to whether it addresses a home-rule municipality's capacity to plead and be impleaded as an entity
or is an expression of the Legislature's intent to waive the City's immunity
from suit. See City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392, 394
(Tex. App.-Dallas 2002), rev'd on other grounds, 47 Tex. Sup. Ct. J. 408,
2004 WL 726906 (Tex. Apr. 2, 2004) (per curiam). In reaching the same
conclusion, the court in Tooke relied on the four factors set forth by
the supreme court in Taylor to determine whether the Legislature has
clearly and unambiguously waived sovereign immunity: (i) the statute waives
immunity beyond doubt; for example, whether the provision in question would be
meaningless unless immunity were waived; (ii) ambiguities are resolved in favor
of retaining immunity; (iii) if the Legislature requires the State be joined in
a lawsuit in which immunity would otherwise attach, the Legislature has
intentionally waived the State's sovereign immunity; and (iv) whether the
statute also provides an objective limitation on the State's potential
liability. See Taylor, 106 S.W.3d at 697-98; see also Tooke, 115
S.W.3d at 623-24. As to the first factor, section 51.075 is not meaningless
without waiver of immunity; the provision could speak to a city's capacity to
participate in litigation when immunity has been waived or to take action to
preserve immunity. As to the second factor, we should resolve ambiguities in
favor of retaining immunity. As noted in Taylor, when the Legislature
intends to waive immunity, often a statute will provide “sovereign immunity to
suit is waived” or use similar unambiguous language. See Taylor, 106
S.W.3d at 696- 97 & n.6. Neither the third nor the fourth Taylor
factors are implicated in section 51.075. See Tooke, 115 S.W.3d at 623-24
(section 51.075 does not require joinder of home-rule municipality in suit for
which immunity would otherwise attach, nor did Legislature simultaneously enact
legislation limiting potential liability of home-rule municipalities when it
enacted section 51.075 or its predecessors). We conclude section 51.075 does not
effect a waiver of the City's immunity “by clear and unambiguous language.”
See Tex. Gov't Code Ann. § 311.034.
We recognize several of
our sister courts have held section 51.075 to be an unambiguous waiver of sovereign immunity for home-rule municipalities.
See, e.g., City of Houston v. Clear Channel Outdoor, Inc., No.
14-03-00022-CV, 2004 WL 63561, at *4 (Tex. App.-Houston [14th Dist.] Jan. 15,
2004, pet. filed) (“plead and implead” language in 51.075 is indistinguishable
from “sue and be sued” language and therefore clearly and unambiguously waives
city's sovereign immunity under Missouri Pac. R.R. Co. v. Brownsville
Navigation Dist., 453 S.W.2d 812 (Tex. 1970)); Goerlitz v. City of
Midland, 101 S.W.3d 573, 577 (Tex. App.-El Paso 2003, pet. filed) (because
section 51.075 provides city may be sued, city's immunity from suit waived);
Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 165 (Tex.
App.-Fort Worth 1992, writ dism'd as moot) (section 51.075 is city's consent to
suit). The Supreme Court has never held that the language “plead and implead” is
a clear and unambiguous waiver of immunity from suit, and we disagree with the
conclusion of our sister courts.
We sustain the City's
sole issue and hold the trial judge erred in denying the City's plea to the jurisdiction. We vacate the trial court's
order and render judgment for the City.
MARK
WHITTINGTON
JUSTICE
040089F.P05
File Date[05/26/2004]
File Name[040089F]
File
Locator[05/26/2004-040089F]