City of Georgetown, Texas v. Lower Colorado River Authority ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00648-CV
City of Georgetown, Texas, Appellant
v.
Lower Colorado River Authority, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-12-002982, HONORABLE TIM SULAK, JUDGE PRESIDING
DISSENTING OPINION
Because I would conclude that the Lower Colorado River Authority (LCRA) failed
to allege a valid waiver of governmental immunity from suit by the City of Georgetown (the City),
I respectfully dissent. See McCandless v. Pasadena Indep. Sch. Dist., No. 03-09-00249-CV,
2010 WL 1253581, at *3 (Tex. App.—Austin Apr. 2, 2010, no pet.) (mem. op.) (“Plaintiff bears the
burden to affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of
immunity, which may be either by reference to a statute or to express legislative permission.” (citing
Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999))).
The majority concludes that the “City has no immunity from this suit” based upon
its conclusion that “the City was acting in a proprietary capacity when it entered into its contracts
with the LCRA.” This conclusion, however, ignores the well-established doctrine of governmental
immunity that protects political subdivisions of the state, including cities, from suit. See Ben Bolt
v. Texas Political Subdivisions, 212 S.W.3d 320, 324 (Tex. 2006); Tooke v. City of Mexia,
197 S.W.3d 325, 328 (Tex. 2006); Multi-County Water Supply Corp. v. City of Hamilton,
321 S.W.3d 905, 907 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). “A political subdivision
enjoys governmental immunity from suit to the extent that immunity has not been abrogated by the
Legislature.” Ben Bolt, 212 S.W.3d at 324 (citing Texas Natural Res. Conserv. Comm’n v. IT-Davy,
74 S.W.3d 849, 853 (Tex. 2002)); Multi–County Water Supply, 321 S.W.3d at 907 (“Immunity from
suit deprives the trial court of subject-matter jurisdiction and bars an action against the governmental
unit in the absence of express, clear, and unambiguous consent to suit.” (citing Tex. Gov’t Code
§ 311.034; Tooke, 197 S.W.3d at 332–33)).
The majority’s analysis of the proprietary-governmental dichotomy also glosses over
LCRA’s pleadings. In its pleadings, LCRA does not allege a breach of contract claim but seeks
declaratory relief. See Tex. Civ. Prac. & Rem. Code §§ 37.001–.011 (UDJA); see, e.g., East
Houston Estate Apartments, L.L.C. v. City of Houston, 294 S.W.3d 723, 731 (Tex. App.—Houston
[1st Dist.] 2009, no pet.) (noting that courts of appeals have “applied the governmental-proprietary
dichotomy to breach of contract cases”). The UDJA “does not enlarge a trial court’s jurisdiction.”
City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009). Except for suits challenging statutes
or ordinances, the UDJA does not waive governmental entities’ immunity from suit. See id.;
IT-Davy, 74 S.W.3d at 855–56; Multi–County Water Supply, 321 S.W.3d at 907 (noting that UDJA
“is not a general waiver of governmental immunity” and that “[b]y entering into a contract, a
governmental entity waives immunity from liability but does not waive immunity from suit”); Lower
Colorado River Auth. v. Riley, No. 10-10-00092-CV, 2011 WL 6956136, at *2 (Tex. App.—Waco
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Dec. 28, 2011, no pet.) (mem. op.) (UDJA “not general waiver of sovereign immunity”). Thus,
LCRA’s UDJA claims do not satisfy its burden to allege a valid waiver of immunity from suit. See,
e.g., IT-Davy, 74 S.W.3d at 855–56, 860 (stating that immunity generally protects a governmental
entity from declaratory-judgment suits that seek to establish a contract’s validity or enforce
performance under the contract “because such suits attempt to control state action”).
LCRA’s pleadings also fail to establish that section 271.152 of the Local Government
Code applies to waive the City’s immunity from suit: the LCRA expressly states it is not bringing
a breach of contract claim for money damages.1 See Tex. Loc. Gov’t Code §§ 271.151–.160
(waiving immunity of local governmental entities for breach of contract claims that seek to recover
balance owed under a contract for goods or services and limiting recoverable damages); McCandless,
2010 WL 1253581, at *3 (concluding “without a properly pleaded breach-of-contract action, section
271.152 does not waive governmental immunity”); cf. Ben Bolt, 212 S.W.3d at 323, 328 (concluding
that limited statutory waiver in section 271.151 applied to insurance coverage dispute in “declaratory
judgment action seeking a determination that the loss was a covered occurrence under the
insurance agreement’s terms”); City of San Antonio v. Wheelabrator Air Pollution Control, Inc.,
381 S.W.3d 597, 599–600 (Tex. App.—San Antonio 2012, pet. filed) (plaintiff seeking money
damages under a breach of contract claim or, alternatively, a quantum meruit claim). LCRA does
1
In its pleadings, LCRA states: “it merely seeks to construe LCRA’s obligations under a
state statute and a contract and does not otherwise attempt to control Defendants or establish their
liability for money damages. . . . LCRA does not seek to validate the contract, impose liability on
Defendants, or enforce their performance. . . . LCRA’s declaratory-action does not seek to establish
that the City owes LCRA money or that the City previously breached its contractual obligations.”
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not seek to recover the balance owed under a contract. See Tex. Loc. Gov’t Code § 271.153 (listing
recoverable damages).
Although a governmental entity waives its immunity from liability by entering into
contracts, it was LCRA’s burden to allege a valid waiver of immunity from suit. See Ben Bolt,
212 S.W.3d at 324 (“By entering into a contract, the State waives its immunity from liability but not
its immunity from suit.”); Jones, 8 S.W.3d at 637 (plaintiff’s burden to allege valid waiver of
immunity). I would conclude that LCRA failed to do so.2
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Goodwin and Field
Filed: August 23, 2013
2
I also cannot join the majority’s analysis of section 271.152 of the Local Government Code,
the section expressly waiving immunity from suit for certain contract claims. See Tex. Loc. Gov’t
Code § 271.152. Section 271.151(2) defines a “contract subject to this subchapter” to mean “a
written contract stating the essential terms of the agreement for providing goods or services to the
local governmental entity that is properly executed on behalf of the local governmental entity.” Id.
§ 271.151(2). Contracts properly executed by a local governmental entity, such as a city, whether
in its governmental or proprietary capacity, fall within the plain language of a “contract subject to
this subchapter.” See id.
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