law-governmental-immunity and ultra vires claims | plea to the jurisdiction | waiver of immunity by conduct | waiver of
sovereign immunity by statute | waiver by conduct exception to governmental, sovereign immunity of governmental
entities | waiver of right to arbitration by litigation conduct | sovereign-immunity-waiver | Houston TTCA cases | Texas
TTCA cases and caselaw | plea to the jurisdiction | governmental entities | governmental and sovereign immunity |
official immunity defense of government employees officers
Sovereign immunity refers to the State’s immunity from suit and liability, and is not implicated
in this case. See MBP Corp. v. Bd. of Trustees of Galveston Wharves, 297 S.W.3d 483, 487
n.3 (Tex. App.—Houston [14th Dist.] 2009, no pet.). However, the terms “sovereign immunity”
and “governmental immunity” are often used interchangeably; therefore, we use term
governmental immunity except when quoting a case or other source that uses the term
sovereign immunity to refer to the immunity of political subdivisions of the state.
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 legislature 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 doctrine of governmental immunity protects political subdivisions of the State from lawsuits for
damages absent a waiver of immunity or legislative consent to sue. MBP Corp. v. Bd. of Trustees
of Galveston Wharves, 297 S.W.3d 483, 487 (Tex. App.—Houston [14th Dist.] 2009, no pet.). It is
undisputed that the taxing entities represented by Linebarger are governmental units. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.001(3)(B) (defining governmental unit as including “a political
subdivision of this state, including any city, county, [and] school district”). It is likewise clear that suits
against the taxing entities for actions taken in the course of assessing and collecting taxes are barred
by governmental immunity. See id. § 101.055 (Vernon 2005) (providing for no waiver of immunity
under Texas Tort Claims Act for any claim arising in connection with assessment or collection of taxes
by governmental unit).
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. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A
governmental entity that enters into a contract waives immunity from liability and voluntarily binds itself
to the contractual terms, but the entity does not thereby waive immunity from suit. Id.; Seureau v.
ExxonMobil Corp., 274 S.W.3d 206, 215 (Tex. App.--Houston [14th Dist.] 2008, no pet.). Here, both
parties agree that the issue is whether the City is immune from suit for breach of contract.
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. The party suing a governmental entity must establish the State's consent to suit by reference to a
statute or to express legislative permission. Gilford, 277 S.W.3d at 69 (citing Mo. Pac. R.R. Co. v.
Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970)). A governmental entity's immunity can
be waived only through the use of clear and unambiguous language. Brown, 80 S.W.3d at 554; Univ.
of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994).
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