IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

═════════_= 52;══

No. 05-0631

════════λ= 2;═══

Abilene Housing Authority,=20 Petitioner,

Gene Duke Builders, = Inc.,=20 Respondent

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Eleventh = District of=20 Texas

═════════_= 52;══════════= ══════════ = 552;══════════= ;══════════&#= 9552;

PER = CURIAM

The = Abilene=20 Housing Authority contracted with Gene Duke Builders, Inc. for repair of = housing=20 units. After a dispute arose concerning completion and payment, Duke, = pursuant=20 to the contract, filed a claim with the =93contracting officer,=94 the = Authority=92s=20 executive director, to no avail. Duke then sought to appeal by demanding = arbitration. When the Authority refused, Duke sued the Authority to = compel=20 arbitration. At first the trial court ordered arbitration, but the = Authority=20 then filed a plea to the jurisdiction, asserting that the procedures for = resolving claims against the State in chapter 2260 of the Texas = Government=20 Code[1] provided the = exclusive=20 forum for Duke=92s claim.[2] In response, Duke = argued,=20 among other things, that the Authority was not a =93unit of state = government=94 to=20 which chapter 2260 applied.[3] That term is = defined by=20 section 2260.001(4) to include any =93entity that is in any branch of = state=20 government and that is created by the constitution or a statute,=94 but = it=20 expressly excludes =93special purpose district[s].=94[4] The trial court = agreed with=20 the Authority, vacated the order compelling arbitration, and dismissed = the case=20 for want of jurisdiction.

The = court of=20 appeals reversed, holding that a municipal housing authority is not a = =93unit of=20 state government=94 to which chapter 2260 applies.[5] We agree, for = essentially=20 the reasons offered by the court of appeals. Thus, chapter 2260 does not = bar=20 Duke=92s suit.

The = court of=20 appeals further held that the Authority=92s immunity from suit was = waived by=20 section 392.065 of the Texas Local Government Code, which lists in one = sentence=20 the =93miscellaneous powers=94 of housing authorities and states in = pertinent part:=20 =93An authority may: (1) sue and be sued . . . .=94 After = the court=20 issued its opinion, we decided Tooke v. City of Mexia, which = holds in=20 part that section 51.075 of the Texas Local Government Code, stating = that a=20 home-rule municipality =93may plead and be impleaded in any court,=94 = does not waive=20 immunity from suit because neither the brief provision itself nor its = broader=20 statutory context reflect a clear and unambiguous legislative intent to = waive=20 immunity from suit.[6] The text of = section 392.065=20 no more reflects an intent to waive immunity than the text of section = 51.075,=20 and Duke does not argue that such an intent can be gleaned from the = broader=20 statutory context in which the former appears, a subject on which we = express no=20 opinion. The court of appeals=92 opinion is thus inconsistent with = Tooke,=20 and we disapprove it.

But = we also=20 held in Tooke[7] that absent some = other=20 waiver of immunity, sections 271.151-.160 of the Texas Local Government = Code=20 (enacted a month before the court of appeals issued its decision in this = case[8]) retroactively = waive, with=20 limitations, immunity from suit for the =93adjudication=94[9] of certain claims = against a=20 =93local governmental entity=94 defined as =93a political subdivision of = this state,=20 other than . . . a unit of state government, as that term is = defined=20 by Section 2260.001, Government Code, including a . . .=20 special‑purpose district or authority . . . .=94[10] Special-purpose = districts,=20 expressly excluded under chapter 2260, are expressly included under = sections=20 271.151-.160. The parties should have the opportunity on remand to = address the=20 applicability of these provisions and any other arguments.[11]

Accordingly,=20 we grant the Authority=92s petition for review, and without hearing oral = argument,[12] reverse the = judgment of=20 the court of appeals and remand the case to the trial court for further=20 proceedings.

Opinion=20 delivered: June 1, 2007

^{^[1]} Tex. Gov=92t=20 Code =A7=A7 2260.001-.108.

^{^[2]} Id. =A7 2260.005 (=93Subject to = Section=20 2260.007 [retaining the Legislature=92s authority to deny or grant = immunity by any=20 means], the procedures contained in this chapter are exclusive and = required=20 prerequisites to suit in accordance with Chapter 107, Civil Practice and = Remedies Code [regarding legislative permission to sue the State]. This = chapter=20 does not prevent a contractor sued by a unit of state government from = asserting=20 a counterclaim or right of offset against the unit of state government = in the=20 court in which the unit of state government files the = suit.=94).

^{^[3]} Id. =A7 2260.051(a) (=93A = contractor may make a=20 claim against a unit of state government for breach of a contract = between the=20 unit of state government and the contractor.=94).

^{^[4]} Id. =A7 2260.001(4) (=93=91Unit = of state=20 government=92 means the state or an agency, department, commission, = bureau, board,=20 office, council, court, or other entity that is in any branch of state=20 government and that is created by the constitution or a statute of this = state,=20 including a university system or institution of higher education. The = term does=20 not include a county, municipality, court of a county or municipality, = special=20 purpose district, or other political subdivision of this=20 state.=94).

^{^[5]} 168 S.W.3d 215, 218-20 (Tex. App.CEastland 2005).

^{^[6]} 197 S.W.3d 325, 342 (Tex. = 2006).

^{^[7]} Id. at 344-45.

^{^[8]} Act of May 23, 2005, 79th Leg., R.S., ch. = 604, =A7=A7 1-3,=20 2005 Tex. Gen. Laws 1548.

^{^[9]} Tex. Loc. Gov=92t=20 Code =A7 271.151(1) (=93=91Adjudication=92 of a claim means = the bringing of=20 a civil suit and prosecution to final judgment in county or state court = and=20 includes the bringing of an authorized arbitration proceeding and = prosecution to=20 final resolution in accordance with any mandatory procedures established = in the=20 contract subject to this subchapter for the arbitration=20 proceedings.=94). &n= bsp; =20

^{^[10]} Id. =A7 271.151(3) (=93=91Local = governmental=20 entity=92 means a political subdivision of this state, other than a = county or a=20 unit of state government, as that term is defined by Section 2260.001,=20 Government Code, including a: (A) municipality; (B) public school = district and=20 junior college district; and (C) special‑purpose district or = authority,=20 including any levee improvement district, drainage district, irrigation=20 district, water improvement district, water control and improvement = district,=20 water control and preservation district, freshwater supply district, = navigation=20 district, conservation and reclamation district, soil conservation = district,=20 communication district, public health district, emergency service = organization,=20 and river authority.=94).

^{^[11]} City of Houston v. Jones, 197 S.W.3d = 391, 392=20 (Tex. 2006) (per curiam).

^{^[12]} Tex. R. App. P.=20 59.1.