Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, October 6, 2011

Governmental immunity & local governmental entities


Governmental immunity protects political subdivisions of the state, including cities, from lawsuits for money damages, unless such immunity has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Governmental immunity, like sovereign immunity, involves immunity from suit and immunity from liability. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008) (explaining that “both types of immunity afford the same degree of protection”). Immunity from suit is jurisdictional and bars suit, whereas immunity from liability is not jurisdictional and protects from judgments. Harris Cnty. Hosp. Dist., 283 S.W.3d at 842.


When governmental immunity is waived by the legislature, the waiver must use clear and unambiguous language indicating its intent do so. See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010); Harris Cnty. Hosp. Dist., 283 S.W.3d at 842. A plaintiff bears the burden to affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of immunity, which may be either a reference to a statute or to express legislative permission. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999).

A municipality, like the City, has immunity only for its governmental acts, not its proprietary acts. East Houston Estate Apartments., L.L.C. v. City of Houston, 294 S.W.3d 723, 730 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In the Texas Tort Claims Act, the legislature has noted that governmental functions “are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (Vernon 2011). On the other hand, a proprietary act is an act performed by a municipality in its discretion, primarily for the benefit of those within its corporate limits rather than for the general public. Id. § 101.0215(b). The legislature has expressly stated that governmental functions include fire protection, street construction and design, and parking facilities. Id. § 101.0215(a)(1), (25), (31).

The legislature has waived governmental immunity from suit for local governmental entities when they enter into certain contracts. See TEX. GOV’T CODE ANN. § 271.152. However, this Court has held that section 271.152’s waiver of immunity does not include claims founded in quantum meruit. City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 13 (Tex. App.—Houston [1st Dist.] 2007, no pet.)( section 271.152 waives sovereign immunity only for breach of contract and “lists no other claims, either in law or in equity”; therefore, section 271.152 does not apply to claims for quantum meruit ); see also H & H Sand & Gravel, Inc. v. City of Corpus Christi, No. 13-06-00677-CV, 2007 WL 3293628, at *3 (Tex. App.—Corpus Christi Nov. 8, 2007, pet. denied) (mem. op.) (holding that claims in equity, including waiver by acceptance of material and benefit and detrimental reliance, are not encompassed by section 271.152’s limited waiver). Furthermore, section 271.152(2) defines a “contract subject to this subchapter” as a “written contract.” Because a claim for promissory estoppel is not a claim on a written contract, immunity is not waived under section 271.152 for such a claim. The workers’ promissory estoppel and quantum meruit claims sound in equity, and they are simply not included in section 271.152’s limited waiver of governmental immunity. See Swinerton Builders, Inc., 233 S.W.3d at 13.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00490-CV - 8/25/11


The Texas Tort Claims Act waives a governmental entity’s immunity from suit on all claims for which it waives immunity from liability. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.025. It provides a limited waiver of immunity for: (1) property damage, personal injury, and death caused by the negligence of an employee if it arises from the operation or use of a motor-driven vehicle or equipment and (2) personal injury and death so caused by a condition or use of tangible personal or real property. Id. § 101.021 (Vernon 2011).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00490-CV - 8/25/11

RELATED LEGAL TERMS: sovereign and governmental immunity doctrines, waiver of immunity to sue and/or liability, governmental immunity vs. sovereign immunity vs. official immunity , Texas Tort Claims Act