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

Waiver of Governmental Immunity [Statutory immunity waiver applicable to local governmental units]

 
IMMUNITY OF SUB-STATE GOVERNMENTAL UNITS (including local governments such as municipalities and special districts) AND LEGISLATIVE WAIVER OF SUCH IMMUNITY FOR CERTAIN CONTRACT CLAIMS 
  
GENERAL PRINCIPLES

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). A unit of state government is immune from suit and liability unless the state consents. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Id. at 639. Immunity from liability protects the state from money judgments even if the Legislature has expressly given consent to sue. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).

By entering into a contract, a governmental entity waives its immunity from liability for breach of the contract, “but does not, merely by entering into a contract, waive immunity from suit.” Tex. A&M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520 (Tex. 2002); Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). When a state contracts, it is liable on contracts made for its benefit as if it were a private person. Little–Tex Insulation Co., 39 S.W.3d at 594 (citing Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997)). Immunity from suit bars a suit against a governmental entity unless the Legislature expressly consents to the suit by resolution or by clear and unambiguous statutory language. Tooke, 197 S.W.3d at 332–33; see also Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2011) (providing that statute shall not be construed as waiving sovereign immunity unless waiver is effected by clear and unambiguous language).

STATUTORY WAIVER
  
Local Government Code Section 271.152 waives a governmental entity’s immunity from suit for certain contracts:

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. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005).
 
The Local Government Code defines “a 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.” Id. § 271.151(2) (Vernon 2005).

Thus,

[f]or section 271.152’s waiver of immunity to apply, three elements must be established: (1) the party against whom the waiver is asserted must be a “local governmental entity” as defined by section 271.151(3), (2) the entity must be authorized by statute or by the Constitution to enter into contracts, and (3) the entity must in fact have entered into a contract that is “subject to this subchapter,” as defined by section 271.151(2).

City of Houston v. Williams, 353 S.W.3d 128, 134–35 (Tex. 2011). A contract must meet five elements in order to be a contract subject to section 271.152’s waiver of immunity: “(1) the contract must be in writing, (2) state the essential terms of the agreement, (3) provide for goods or services, (4) to the local governmental entity, and (5) be executed on behalf of the local governmental entity.” Id. at 135.

Section 271.153 provides “Limitations on Adjudication Awards”:

(a) The total amount of money awarded in an adjudication brought against a local governmental entity for breach of a contract subject to this subchapter is limited to the following:

(1) the balance due and owed by the local governmental entity under the contract as it may have been amended, including any amount owed as compensation for the increased cost to perform the work as a direct result of owner-caused delays or acceleration;

(2) the amount owed for change orders or additional work the contractor is directed to perform by a local governmental entity in connection with the contract;

(3) reasonable and necessary attorney’s fees that are equitable and just; and

(4) interest as allowed by law. . . .

Tex. Loc. Gov’t Code Ann. § 271.153 (Vernon Supp. 2011).

Section 271.154 provides:

Adjudication procedures, including requirements for serving notices or engaging in alternative dispute resolution proceedings before bringing a suit or an arbitration proceeding, that are stated in the contract subject to this subchapter or that are established by the local governmental entity and expressly incorporated into the contract or incorporated by reference are enforceable except to the extent those procedures conflict with the terms of this subchapter. Id. § 271.154 (Vernon 2005).

The statute does not define “adjudication procedures,” but it provides:

“Adjudication” of a claim means the bringing of a civil suit and prosecution to final judgment in county or state court and includes the bringing of an authorized arbitration proceeding and prosecution to final resolution in accordance with any mandatory procedures established in the contract subject to this subchapter for the arbitration proceedings. Id. § 271.151(1).

SOURCE: HOUSTON COURT OF APPEALS - FIRST DISTRICT:
Port Freeport f/k/a Brazos River Harbor Navigation District v. RLB Contracting Inc.,  
NO. 01-11-00778-CV (Tex.App.- Houston [1st Dist.] April 26, 2012) (port authority's jurisdictional plea in contract dispute properly denied by the trial court)
 

Statutory Waiver of Immunity of Local Governments to Certain Contract Claims

Governmental Immunity

Governmental immunity protects political subdivisions of the State, including cities, from lawsuits for money damages, unless their 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). Immunity from suit is jurisdictional and bars suit, whereas immunity from liability is not jurisdictional and protects political subdivisions from judgments. Id. Governmental immunity is waived only by clear and unambiguous language indicating the Legislature’s intent to do so.Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010).

Waiver of Immunity for Certain Contract Claims

Local Government Code section 271.152, which waives a local governmental entity’s immunity from suit for certain contract 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. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005). This statute defines a “[c]ontract 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.” Id. § 271.151(2) (Vernon 2005). The total amount of money which may be awarded under this section is “the balance due and owed by the local government entity under the contract,” any amount owed for change order or additional work the governmental entity directed it to perform, and interest as allowed by law. Id. § 271.153(a) (Vernon Supp. 2011).The purpose of this section is to “limit the amount due by a governmental agency on a contract once liability has been established, not to foreclose the determination of whether liability exists.” Kirby Lake, 320 S.W.3d at 840.

The jurisdictional elements for a claim of waiver of immunity based on section 271.152 are as follows: (1) the party against whom the waiver is asserted must be a “local governmental entity”;(2) the entity must be authorized by statute or the Constitution to enter into contracts; and (3) the entity must in fact have entered into a contract that is “subject to this subchapter.” City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011).

SOURCE: HOUSTON FIRST COURT OF APPEALS – 01-10-00240-CV – 4/5/12

Statutory waivers of immunity enjoyed by governmental entities

Governmental and Sovereign Immunity & Statutory Exceptions Thereto (immunity waivers)
   
In Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003), the court explained:

Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to the State's immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.
 
Id. at 694 n.3 (citations omitted). The plaintiff bears the burden to plead facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464 (Tex. App. -Dallas 2009, pet. denied).
  
The Texas Legislature has created exceptions to the doctrine of governmental immunity which are applicable under certain conditions. See Harris Cnty. v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether a governmental unit is immune from liability for a particular claim depends entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that governmental units are liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). The Tort Claims Act recognizes liability for two types of dangerous conditions of real property, premise defects and special defects. Id. at § 101.022.
   
If a claim arises from a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Id. at § 101.022(a). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh'g). Actual knowledge of the dangerous condition is required. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). Constructive knowledge of the defect is insufficient. Id.
   
If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Id.; Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware. Payne, 838 S.W.2d at 237. In The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the court discussed the considerations relevant to a determination that a condition is a special defect:
 
The Legislature does not define special defect but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see also County of Harris v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978) (construing "special defect" as including those defects of the same kind or class as those expressly mentioned in the statute). In Denton County v. Beynon, we reaffirmed that conditions can be special defects "only if they pose a threat to the ordinary users of a particular roadway." 283 S.W.3d 329, 331 (Tex. 2009) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992)). Whether a condition is a special defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam). In deciding this question, we have previously considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. See Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). The class of special defects contemplated by the statute is narrow.
 
SOURCE: DALLAS COURT OF APPEALS - 05-11-00509-CV - 10/26/11
 
Appellants argue the tall vegetation located in the easement along Sundown Road is a special defect, or in the alternative a premise defect from which their claim arose. Accordingly, we first address whether the tall vegetation constituted a special defect for purposes of section 101.022(b) of the Tort Claims Act. As emphasized by the court in Hayes and in Denton County v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009), the special defect class is narrow. The defect must "pose a threat to 'ordinary users' in the manner that an excavation or obstruction blocking the road does." Beynon, 283 S.W.3d at 332; see also Hayes, 327 S.W.3d at 116. The court in Beynon also explained that its statement in Payne that excavations and obstructions "present an unexpected and unusual danger to ordinary users of roadways" did not create an additional element that could be proven to establish a special defect. Beynon, 283 S.W.3d at 331, n.11. Rather, the "unexpected and unusual danger" language was used "to describe the class, not to redefine it." Id. As noted in Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect. See Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.-Tyler 1999, pet. denied) (collecting cases).

Texas Whistleblower Act: Is an internal grievance always required prior to a whistle-blower lawsuit?

WOULD-BE WHISTLE-BLOWERS BEWARE OF PROCEDURAL REQUIREMENTS

Initiation of internal grievance process with governmental employers generally required prior to lawsuit, but there may be rare exceptions....

The Texas Whistleblower Act provides that, "[a] state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOV’T CODE ANN. § 554.002(a). A governmental entity’s sovereign immunity is waived for violation of the Act. Id. at § 554.0035.

ELEMENTS OF CAUSE OF ACTION UNDER THE WHISTLEBLOWER ACT

A plaintiff must allege the following elements of a claim under the Act: (1) she is a public employee; (2) she acted in good faith in making a report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) she suffered retaliation as a result of making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex. App.—San Antonio 2004, no pet.).

TIMING OF ADVERSE PERSONNEL ACTION RELEVANT

The employee bears the burden of proof, except that if the suspension, termination or adverse personnel action occurs within 90 days of the employee’s report, then a rebuttable presumption arises that the employer’s action was because the employee made the report. TEX. GOV’T CODE ANN. § 554.004(a). It is an affirmative defense that the employer would have taken the action against the employee based solely on information, observation, or evidence unrelated to the employee’s report. Id. a § 554.004(b).
 
GRIEVANCE REQUIREMENT
 
As a statutory prerequisite to the filing of suit under the Act, an employee must "initiate action under the grievance or appeal procedures" of the employer within 90 days after the employer’s alleged violation of the Act. Id. at § 554.006(a). The purpose of this prerequisite is to give the employer "the opportunity to correct its errors by resolving disputes before being subjected to the expense and effort of litigation." City of San Antonio v. Marin, 19 S.W.3d 438, 441 (Tex. App.—San Antonio 2000, no pet.), disapproved on other grounds by 159 S.W.3d 631 (Tex. 2005) (citing House Research Organization, Bill Analysis, Tex. H.B. 1405, 71st Leg., R.S. (1989)); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 774 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.).   

INITIATION OF INTERNAL COMPLAINT VS. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Section 554.006 does not require exhaustion of the employer’s grievance or appeal procedures, but merely timely initiation, before suit may be filed. Univ. of Tex. Med. Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) (recognizing effect of 1995 amendment that requires only initiation of grievance by employee, not full exhaustion, and a 60 day waiting period for employer’s final decision on grievance; holding if employee’s suit is filed prematurely, proper remedy is abatement).
 
GRIEVANCE REQUIREMENT IS JURISDICTIONAL
 
The statutory prerequisites to filing suit under the Act are mandatory and jurisdictional. Smith v. Univ. of Tex. Sw. Med. Ctr. of Dallas, 101 S.W.3d 185, 189 (Tex. App.—Dallas 2003, no pet.). However, the purpose of the Act is remedial and it should be liberally construed in favor of jurisdiction. Town of Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet. denied); Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 319 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
  
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00113-CV - 10/12/11
Leyva v. Crystal City, Texas (Tex.App.- San Antonio, 2011, no pet. h.)
Appeal from 293rd Judicial District Court of Zavala County

Conclusion. Because it is unclear whether the City’s grievance procedure applies to terminated employees, we hold the trial court erred in granting the City’s plea to the jurisdiction based on Leyva’s failure to initiate a grievance under the City’s procedures after her termination. See Miranda, 133 S.W.3d at 227-28. Because this issue is dispositive of the appeal, we need not reach Leyva’s second issue. Accordingly, the trial court’s order granting the City’s plea to the jurisdiction is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00113-CV - 10/12/11

RELATED CAUSES OF ACTION: Sabine Pilot wrongful termination claim against private employer (fired for refusing to commit illegal act); OTHER PAGES ON WHISTLEBLOWERS: Texas Supreme Court Whistleblower Decisions   

Governmental immunity & local governmental entities

   
THE DEFENSE OF GOVERNMENTAL IMMUNITY

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.

STATUTORY WAIVERS OF SOVEREIGN / GOVERNMENTAL IMMUNITY

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

WAIVER OF IMMUNITY PER TEXAS TORT CLAIMS ACT

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