Opinion
No. 04-05-00317-CV
Delivered and Filed: May 3, 2006.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 04-12-17186-CV, Honorable Mickey R. Pennington, Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Paula Construction, Inc., appeals the trial court's order granting the City of Lytle's plea to the jurisdiction. We hold that immunity has been waived; therefore, we reverse the trial court's judgment dismissing this suit for lack of jurisdiction and remand the case for further proceedings.
Factual and Procedural Background
The facts in this case pertaining to jurisdiction are straightforward and undisputed. Paula Construction entered into a construction contract with the City of Lytle on October 14, 2002 to remove sludge material from two of the city's wastewater treatment ponds. Paula Construction then filed suit against the City of Lytle on December 10, 2005 for breach of contract for allegedly failing to pay for the services rendered. The City of Lytle filed a plea to the jurisdiction, arguing the court lacked jurisdiction to consider the claims against it based on sovereign immunity from suit. The trial court agreed and dismissed Paula Construction's suit against the City of Lytle for lack of jurisdiction. Paula Construction now appeals.
Standard of Review
A trial court's ruling on a plea to the court's subject matter jurisdiction is a question of law subject to de novo review. Tex. Nat'l Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Also, "[i]nterpretation of a statute is a pure question of law over which the [trial] judge has no discretion." Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997) (orig. proceeding). Accordingly, we review the trial court's determination that the City of Lytle is immune from suit de novo.
Discussion
The City of Lytle is a Type A municipality. In Texas, a municipality, such as the City of Lytle, exercising its governmental function is protected from suit under the doctrine of sovereign immunity unless the legislature affirmatively and unambiguously waives that immunity. Tex. Civ. Prac. Rem. Code Ann. §§ 101.001(3)(A),(B), 101.025 (Vernon 2005). As a Type A municipality, the legislature has said that the City of Lytle "may sue and be sued, implead and be impleaded, and answer and be answered in any matter in any court or other place." Tex. Loc. Gov't Code Ann. § 51.013 (Vernon 1999). The City of Lytle argues that the "sue and be sued" language does not affirmatively and unambiguously expose government entities to the expense of litigation. We disagree.
Governmental immunity encompasses the separate principles of immunity from liability and immunity from suit. Gen. Services Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001), overruled on other grounds by Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004); Missouri Pac. R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). In the contract context, a governmental entity waives immunity from liability when it enters into a contract. Texas A M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520-21 (Tex. 2002) (rejecting the view that immunity from suit is also waived by the mere acceptance of benefits under a contract); Travis County v. Pelzel Assoc., Inc., 77 S.W.3d 246, 248 (Tex. 2002); Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 408 (Tex. 1997) (superseded by statute). However, only the legislature can waive immunity from suit. It is the legislature's sole province to waive or abrogate sovereign immunity. IT-Davy, 74 S.W.3d at 853; Lawson, 87 S.W.3d at 521 ("[f]or breach of contract claims, the Legislature has waived immunity in some instances but not all"); Little-Tex, 39 S.W.3d at 597 (stating that "there is but one route to the courthouse for breach-of-contract claims against the State, and that route is through the Legislature").
In addition, waiver of immunity from suit must be expressed in clear and unambiguous language. Our Texas Supreme Court has previously held in Missouri Pacific that a statute containing the language "sue and be sued" does create a waiver of governmental immunity. Missouri Pac., 453 S.W.2d at 813. In Missouri Pacific, the Court considered whether a 1925 statute clearly and unambiguously waived Brownsville Navigation District's immunity from suit. Id. The statute at issue provided, "[a]ll navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district. . . ." Id. (emphasis added). The court held, "in our opinion [the statute] is quite plain and gives general consent for [a] District to be sued in the courts of Texas in the same manner as other defendants." Id. Thus, under Missouri Pacific, governmental immunity from suit is waived where the legislature provides that the governmental entity may "sue and be sued." Id.; accord, Alamo Community College Dist. v. Browning Const. Co., 131 S.W.3d 146, 152-54 (Tex.App.-San Antonio 2004, pet. filed); Alamo Community College Dist. v. Obayashi Corp., 980 S.W.2d 745, 747-48 (Tex.App.-San Antonio 1998, pet. denied), abrogated on other grounds by Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 595-98 (Tex. 2001); Goerlitz v. City of Midland, 101 S.W.3d 573, 577 (Tex.App.-El Paso 2003, pet. filed); Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 165 (Tex.App.-Fort Worth 1992, writ dism'd as moot).
We note that the Dallas Court of Appeals has refused to apply the holding of Missouri Pacific. See, e.g., City of Mesquite v. PKG Contracting, Inc., 148 S.W.3d 209, 213-14 (Tex.App.-Dallas 2004, pet. filed); City of Carrollton v. McMahon Contracting, L.P., 134 S.W.3d 925, 928 (Tex.App.-Dallas 2004, pet. filed); Satterfield Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 123 S.W.3d 63, 66-67 (Tex.App.-Dallas 2003, pet. filed). The Waco Court of Appeals has followed suit. See City of Mexia v. Tooke, 115 S.W.3d 618, 622-23 (Tex.App.-Waco 2003, pet. granted). The City of Lytle urges us to follow the Dallas and Waco courts' reasoning, yet we are bound by the precedent set by the Texas Supreme Court in Missouri Pacific until that Court directs otherwise.
Like the statute at issue in Missouri Pacific, the statute applicable to the City of Lytle in this case uses the triggering words "sue and be sued." Tex. Loc. Gov't Code Ann. § 51.013. The Supreme Court's use of the term "quite plain" in its description of the Legislature's waiver using the "sue and be sued" language in Missouri Pacific certainly applies to the statutory language in the case before us. Here, the Legislature expressly waived immunity from suit respecting a contract claim when it used "sue and be sued" language in the statue. See Webb v. City of Dallas, 314 F.3d 787, 795-96 (5th Cir. 2002). Accordingly, we hold that the plain language of § 51.013 waives the City of Lytle's sovereign immunity from suit in this contract action; therefore, the trial court erred by granting the City's plea to the jurisdiction.
C.f., City of San Antonio v. Butler, 131 S.W.3d 170, 176 (Tex.App.-San Antonio 2004, pet. filed) (holding Texas Tort Claims Act, not statute, governs a city's immunity from suit on tort liability).
The City of Lytle urges us to postpone our decision in this case until the Texas Supreme Court decides two pending cases challenging the Missouri Pacific decision. However, Missouri Pacific is good law today. As we stated in Browning Construction, we are bound by the authority of Missouri Pacific unless the Supreme Court overrules it. Browning Construction, 131 S.W.3d at 154. Indeed, the Supreme Court reaffirmed Missouri Pacific in 1997 with its decision in Federal Sign v. Texas Southern University. Federal Sign, 951 S.W.2d at 408. Although in Federal Sign the Court did not conclude that legislative consent to suit was expressly given, the Court affirmed the holding of Missouri Pacific, maintaining that "sue and be sued" language properly waives immunity from suit. Id. Accordingly, the "sue and be sued" language remains a valid waiver of immunity from suit in a contract action.
City of Mexia v. Tooke, 115 S.W.3d 618, 621-23 (Tex.App.-Waco 2003, pet. granted) (code stating home-rule municipality "may plead and be impleaded in any court" is not waiver of immunity from suit); Reata Const. Corp. v. City of Dallas, 47 Tex. Sup. Ct. J. 408, 2004 WL 726906 (Tex. Apr. 2, 2004, rehearing granted) (per curium) (city waived immunity from suit by intervening in lawsuit to assert claims for affirmative relief).
For the reasons stated above, we hold that the trial court erred by granting the City's plea to the jurisdiction and dismissing this suit for lack of jurisdiction. The trial court's judgment is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.