Discussion
Governmental immunity
protects governmental entities from lawsuits for damages absent legislative consent. See Fed. Sign v. Tex. S.
Univ., 951 S.W.2d 401, 405 (Tex. 1997). The doctrine is comprised of two
distinct concepts: (1) immunity from suit (barring a lawsuit unless the
Legislature expressly gives its consent to suit), and (2) immunity from
liability (protection from judgments even if the Legislature has expressly given
its consent to the suit). See id. Although a governmental entity waives
immunity from liability when it contracts with private citizens, immunity from
suit is not waived by merely entering into a contract. See Catalina Dev.,
Inc. v. County of El Paso, 46 Tex. Sup. Ct. J. 636, 637, 2002 WL 32088025 at
*10 (Tex. May 8, 2003); Gen. Serv.'s Comm'n v. Little-Tex Insulation Co.,
39 S.W.3d 591, 594 (Tex. 2001). Instead, express consent is required to show
that immunity from a breach of contract suit has been waived. See Travis Co.
v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex. 2002). This consent
must be expressed by clear and unambiguous language. Tex. Gov't Code Ann. §
311.034 (Vernon Supp. 2003); Pelzel, 77 S.W.3d at 248.
We review de
novo the trial court's ruling on a plea to the jurisdiction based on
immunity from suit. See Tex. Natural Res.
Conserv. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Where, as here,
there was no evidence presented to the trial court on the jurisdictional issue,
we look solely to the pleadings to determine whether the trial court's
jurisdiction was properly invoked. See Tarkington Indep. Sch. Dist. v.
Aiken, 67 S.W.3d 319, 326 (Tex. App.-Beaumont 2002, no pet.). Satterfield's
pleadings must establish, either by reference to a statute or express
legislative permission, the Legislature's consent to its lawsuit, or immunity
from suit will deprive the trial court of subject matter jurisdiction. See
Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999).
When determining whether the
Legislature has clearly and unambiguously waived 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).
Satterfield pleaded the
“sue and be sued” language contained in section 11.151 clearly expresses the Legislature's intention to waive the
District's immunity from suit in breach of contract actions. We do not agree.
The statutory provision we are called upon to construe is located in the
education code under a subchapter entitled “Powers and Duties of Board of
Trustees of Independent School District.” It provides as
follows:
§ 11.151 In
General
(a) The trustees of an independent school district constitute a body
corporate and in the name of the district may
acquire and hold real and personal property, sue and be sued, and receive
bequests and donations or other moneys or funds coming legally into their
hands.
Tex. Educ. Code Ann. §
11.151(a) (Vernon 1996).
At least one commentator
has suggested that because “sue and be sued” language originated in the corporate law context, these provisions can
easily be read as a designation to give a particular entity a legal existence in
the courts. George C. Kraehe, “There's Something About Cities”: Understanding
Proprietary Functions of Texas Municipalities and Governmental Immunity, 32
Tex. Tech. L. Rev. 1, 35-36 (2000). We agree. In fact, we recently reached a
similar conclusion in City of Dallas v. Reata Construction Corp., 83
S.W.3d 392, 399 (Tex. App.-Dallas 2002, pet. filed). In Reata, the
subcontractor contended language in the local government code that the City
could “plead and be impleaded in any court” and a city charter provision stating
the City could “sue and be sued” waived the City's immunity from its negligence
suit. Id. at 398. In rejecting the subcontractor's claim, we noted that
such language merely “speak[s] to the City's capacity to sue and its capacity to
be sued when immunity has been waived.” Id.
We likewise
view section 11.151 as acknowledging the District's capacity to sue and its capacity to be sued once immunity has been
waived. A school district has only those powers granted to it by the
Legislature. See Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447,
453 (Tex. 1995). The sue and be sued language merely recognizes the District's
ability to utilize the courts as a legal entity, just as the remainder of
section 11.151 authorizes the District to hold property, and receive bequests,
donations, and other funds. At a minimum, we conclude section 11.151(a) is
ambiguous as to whether it addresses the District's capability to sue and be
sued as an entity or is an expression of the Legislature's intent to waive the
District's immunity from suit. We are required to construe the statute in a
manner that retains the District's immunity. See Taylor, 106 S.W.3d at
697.
In reaching this
conclusion, we reject Satterfield's assertion that Missouri Pacific Railroad Co. v. Brownsville Navigation District,
453 S.W.2d 812 (Tex. 1970) mandates a different result. In Missouri
Pacific, the railway sought indemnity from the navigation district
for the railway's liability in a wrongful death suit based on a “written track
agreement” prohibiting the district from allowing certain objects to be placed
near the track. Id. at 812-13. Although generally acknowledging the
district's immunity from suit, the court construed a “sue and be sued” provision
in a 1925 statute creating the district as a general consent to suit by the
Legislature thereby authorizing the railway's suit against the navigation
district. Id. at 813.
As support for its
holding, the Missouri Pacific court noted specifically that suits against counties had been held to be authorized by
statutes that were significantly less straight forward on the waiver of immunity
issue such as those: (1) merely requiring the filing of a claim before
institution of suit, (2) providing for county inhabitants to serve as jurors or
witnesses, and (3) prohibiting the issuance of an execution on a judgment
against a county. Id. The court held the “sue and be sued” statute was
“quite plain and gives general consent for District to be sued in the courts of
Texas in the same manner as other defendants.” Id. Our research has
revealed Missouri Pacific as the first and only time the Texas Supreme
Court has directly addressed the issue of whether a “sue and be sued” statute
constitutes a waiver of immunity from suit. More importantly, the supreme court
has since departed from the logic of Missouri Pacific in the three
decades following that decision.
Ten years after
Missouri Pacific, the supreme court held that any waiver of immunity from suit must be expressed by the Legislature in
clear and unambiguous language. Duhart v. State, 610 S.W.2d 740, 742
(Tex. 1980). That holding has been consistently reaffirmed. See Tex.
Gov't Code Ann. § 311.034; Taylor, 106 S.W.3d at 696; Pelzel, 77
S.W.3d at 248; IT-Davy, 74 S.W.3d at 854; Fed. Sign, 951 S.W.2d at
405; City of Laporte v. Barfield, 898 S.W.2d 288, 291 (Tex.
1995).
More recently, in a
construction contract action similar to the one before us, the supreme court applied the clear and unambiguous standard to
hold a presentment statute did not waive a county's immunity from suit.
See Pelzel, 77 S.W.3d at 249. The statute in Pelzel
provided “a person may not sue on a claim against a county unless the person has
presented the claim to the commissioners court and the commissioners court has
neglected or refused to pay all or part of the claim.” The Pelzel court
acknowledged Missouri Pacific's holding by stating that “sue and be sued”
language “arguably show[s] intent to waive sovereign immunity” Id.
(emphasis added). But Pelzel also noted there were no cases to support
Missouri Pacific's assertion that a county's immunity from suit
had been held to be waived by statutes requiring the filing of a claim before
institution of suit. Id. at 251. After Pelzel, the rationale
behind Missouri Pacific's holding, which was based in part on an
understanding that a presentment statute waived immunity from suit, has been
called into question.
Similarly, applying the
clear and unambiguous standard in a wrongful death case, the supreme court has also concluded the Legislature did not waive
a state hospital's immunity from suit by enacting the patient's bill of rights
which provides “a person who has been harmed by a violation [under this statute]
may sue for injunctive relief, damages or both.” See Taylor, 106 S.W.3d
at 700. Both Pelzel and Taylor listed several examples of clear
and unambiguous expressions of the Legislature's intent to waive immunity from
suit. Taylor, 106 S.W.3d at 697 n.6; Pelzel, 77 S.W.3d at 249.
Notably, neither of these supreme court cases presented a “sue and be sued”
statute as an example of a clear and unambiguous waiver of immunity from
suit.
We acknowledge several
appellate courts have summarily concluded “sue and be sued” language expresses the Legislature's general consent to suit and
waives a governmental entity's immunity from suit based on Missouri
Pacific's holding. See, e.g., Goerlitz v. City of Midland, 101 S.W.3d
573, 577 (Tex. App.-El Paso 2003, pet. filed) (city charter provides the city
may sue and be sued); Tarrant Co. Hosp. Dist. v. Henry, 52 S.W.3d 434,
448 (Tex. App.-Fort Worth 2001, no pet.) (health and safety code provides the
board of managers of a hospital district statute may sue and be sued); Welch
v. Coca-Cola Enter., Inc., 36 S.W.3d 532, 538 (Tex. App.-Tyler 2000, pet.
withdrawn) (education code provides the school district trustees may sue and be
sued); Bates v. Tex. State Tech. Coll., 983 S.W.2d 821, 827 (Tex.
App.-Waco 1998, pet. denied) (education code provides college board may sue or
be sued); Alamo Comm. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745,
747-48 (Tex. App.-San Antonio 1998, pet. denied) (education code provides
independent school district trustees can sue or be sued); Dillard v. Austin
Indep. Sch. Dist., 806 S.W.2d 589, 594 (Tex. App.-Austin 1991, writ denied)
(op. on reh'g) (education code provides school district trustees may sue and be
sued); Fazekas v. Univ. of Houston, 565 S.W.2d 299, 302 (Tex. Civ.
App.-Houston [1st Dist.] 1978, writ ref'd n.r.e) (education code provides
University of Houston board may sue and be sued). None of these cases, however,
addresses or even acknowledges the changes that have taken place in the law
relating to waiver of immunity from suit issues since Missouri
Pacific.
Applying the well-settled
principles evolved since Missouri Pacific, we hold that because section 11.151 is not a clear and unambiguous
waiver of the District's immunity from suit, the trial court did not err in
dismissing Satterfield's breach of contract claims for want of jurisdiction. In
reaching our conclusion, we necessarily reject Satterfield's contention that
whether “sue or be sued” language constitutes a clear and unambiguous waiver of
immunity from suit depends on whether the underlying claims asserted sound in
tort or in contract. We are aware of no case that has made such a distinction.
Cases have routinely cited both tort and contract causes of action for various
propositions relating to legislative waivers of immunity from suit. The
fundamental concepts, including the requirement of clear and unambiguous
language, have been applied equally to both types of actions. Satterfield has
not advanced any reason to distinguish between cases sounding in tort and those
sounding in contract.
The Legislature has
repeatedly demonstrated that it knows how to waive sovereign immunity in clear and unambiguous language. Taub v. Harris
Co. Flood Control Dist., 76 S.W.3d 406, 410 (Tex. App.-Hous. [1st Dist.]
2001, no pet.). Because section 11.151 of the education code does not clearly
and unambiguously waive immunity from suit for breach of contract claims against
independent school districts, we affirm the trial court's judgment dismissing
Satterfield's claims for want of jurisdiction.
MOLLY
FRANCIS
JUSTICE
Lang, J.
dissenting
030004f.p05
File Date[10/06/2003]
File Name[030004F]
File
Locator[10/06/2003-030004F]