Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Monday, December 22, 2014

Governmental immunity from suit and statutory exception for some contract claims against local government entities


GOVERNMENTAL IMMUNITY AND LIMITED WAIVER UNDER THE LOCAL GOVERNMENT CODE 

Governmental immunity has two components: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit is a bar to the suit in its entirety. Id. When a governmental entity enters into a contract, it waives immunity from liability; however, that waiver of liability does not establish waiver of immunity from suit. For there to be waiver of immunity from suit, the Legislature must specifically provide for the waiver. See Tooke, 197 S.W.3d at 332-33 (requiring clear and unambiguous language for waiver of governmental immunity).

Texas Local Government Code Section 271.152, entitled "Waiver of Immunity to Suit for Certain Claims," provides:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.
Tex. Local Gov't Code § 271.152 (West 2005) (Emphasis added).

Section 271.151 defines "governmental entity" as "a political subdivision of this State . . . including a . . . public school district." Tex. Local Gov't Code § 271.151(3) (West 2005); see also Witchita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); Gatesco Q.M., Ltd. v. City of Houston, 333 S.W.3d 338, 348 n.7 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

Section 271.151(2) defines "contract subject to this subchapter" as:
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."
Tex. Loc. Gov't Code § 271.151(2) (West 2005) (Emphasis added).
Section 271.153, entitled "Limitation on Adjudication Awards," provides the total amount of money awarded in a breach-of-contract action brought against a governmental entity is limited to "the balance due and owed by the local governmental entity under the contract . . . ." Tex. Loc. Gov't Code § 271.153(a) (West 2005) (Emphasis added). Thus, the party seeking to establish waiver must allege a local governmental entity is involved, the entity entered into a contract subject to the subchapter, and the adjudication involves the breach of that contract.

SOURCE: FOURTEENTH COURT OF APPEALS - 14-13-00882-CV - 11/6/2014

WAIVER OF GOVERNMENTAL IMMUNITY UNDER SECTION 271.152

TEX. LOC. GOV'T CODE ANN. § 271.152 (West, Westlaw through 2013 3d C.S.).

Under section 271.152 of the Texas Local Government Code, "A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract . . . ." Id. "`Contract subject to this subchapter' means 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) (West, Westlaw through 2013 3d C.S.). "Local governmental entity" includes public school districts such as BISD. Id. § 271.151(3)(B). By entering into a written contract stating the essential terms of an agreement to provide insurance services, a government entity waives its immunity from suit. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex. 2006).

SOURCE: CORPUS CHRISTI COURT OF APPEALS - No. 13-11-00270-CV - 4/30/2014