Tex. Supreme Court Expands Immunity Doctrine to Protect Government Entities from Suits

June 30, 2006 - Supreme Court of Texas Decides Major Immunity
Issues, Releases Opinions in Numerous Appeals Involving Cities
and Other Governmental Entities

Supreme Court Says "Power to Sue and be Sued" Clauses Do Not Mean
Entities May Be Sued

Tooke v. City of Mexia No. 03-0878 (Tex. June 30, 2006)(opinion by Justice Hecht)
03-0878 JUDY TOOKE AND EVERETT TOOKE D/B/A TOOKE AND SONS AND D/B/A
NATURE'S WAY ORGANIC LANDSCAPING v. THE CITY OF MEXIA;
from Limestone County; 10th district (10 02 00261 CV, 115 SW3d 618, 07 23 03)
motion for court to take judicial notice granted
The Court affirms the court of appeals' judgment.

Justice Hecht delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice
Wainwright, Justice Brister, Justice Medina, and Justice Green

Scores of Texas statutes provide, variously, that individuals and entities, public and private,
may (“sue and (or) be sued”, “(im)plead and (or) be impleaded”, “be impleaded”, “prosecute
and defend”, “defend or be defended”, “answer and be answered”, “complain and (or)
defend”, or some combination of these phrases, in court.[1] The phrases are also used in
municipal charters and ordinances and in corporate articles and bylaws. Read in context, they
sometimes waive governmental immunity from suit, sometimes do not, and sometimes have
nothing whatever to do with immunity, referring instead to the capacity to sue and be sued or
the manner in which suit can be had (for example, by service on specified persons). Because
immunity is waived only by clear and unambiguous language,[2] and because the import of
these phrases cannot be ascertained apart from the context in which they occur, we hold that
they do not, in and of themselves, waive immunity from suit.”)

Justice Johnson delivered an opinion concurring in part and dissenting in part
Justice O'Neill delivered a dissenting opinion
(Justice Willett not sitting)

The Companion Cases

Satterfiled v. Irving ISD No. 04-0175 (Tex. June 30, 2006)
04-0175 SATTERFIELD & PONTIKES CONSTRUCTION, INC. v. IRVING INDEPENDENT SCHOOL DISTRICT;
from Dallas County; 5th district (05 03 00004 CV, 123 SW3d 63, 09 26 03)
as amended
as supplemented
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
(Justice Willett not sitting)

City of Houston v. Clear Channel Outdoor, Inc. No. 04-0406 (Tex. June 30, 2006)
04-0406 THE CITY OF HOUSTON, TEXAS v. CLEAR CHANNEL OUTDOOR, INC.; from Harris County; 14th
district (14 03 00022 CV, 161 SW3d 3, 01 15 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion (Justice Wainwright, Justice Brister, and Justice Willett not sitting)

McMahon Contracting v. City of Carrollton No. 04-0622 (Tex. June 30, 2006)
04-0622 MCMAHON CONTRACTING, L.P. v. CITY OF CARROLLTON;
http://www.supreme.courts.state.tx.us/Historical/2006/jun/040622.htm
from Dallas County; 5th district (05 04 00089 CV, 134 SW3d 925, 05 26 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
(Justice Brister and Justice Willett not sitting)

City of Houston v. Allco, Inc. No. 04-0730 (Tex. June 30, 2006)(motion for rehearing filed)
04-0730 CITY OF HOUSTON v. ALLCO, INC.;
from Harris County; 1st district (01 02 00812 CV, ___ SW3d ___, 07 01 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion
(Justice Willett not sitting)

City of Tyler v. Beck No. 04-0813 (Tex. June 30, 2006)
04-0813 CITY OF TYLER, TEXAS v. TIMOTHY L. BECK AND SUSAN G. BECK; from
Smith County; 12th district (12 03 00170 CV, ___ SW3d ___, 07 14 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion

City of Houston v. Jones No. 04-0879 (Tex. June 30, 2006)
04-0879 CITY OF HOUSTON v. KENNETH S. JONES;
from Harris County; 1st district (01 03 00831 CV, ___ SW3d ___, 08 19 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
(Justice Willett not sitting)

City of Houston v. Clark No. 04-0930 (Tex. June 30, 006)
04-0930 THE CITY OF HOUSTON v. DONALD CLARK;
from Harris County; 14th district (14 03 00399 CV, 142 SW3d 350, 02 24 04)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice O'Neill delivered the opinion of the Court

City of Houston v. Boyer, Inc. No. 04-1021 (Tex. June 30, 2006)
04-1021 THE CITY OF HOUSTON v. BOYER, INC.;
from Harris County; 1st district (01 04 00153 CV, ___ SW3d ___, 09 30 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
(Justice Willett not sitting)

City of Waco v. Kelley No. 04-1113 (Tex. June 30, 2006)
04-1113 CITY OF WACO, TEXAS v. LARRY KELLEY;
from McLennan County; 10th district (10 03 00214 CV, ___ SW3d ___, 10 29 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion

PKG Contracting v. City of Mesqui te No. 04-1139 (Tex. June 30, 20060
04-1139 PKG CONTRACTING, INC. v. CITY OF MESQUITE;
from Dallas County; 5th district (05 04 00169 CV, 148 SW3d 209, 09 30 04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
(Justice Willett not sitting)

Columbus I.S.D. v. Five Oaks Achievement Ctr. No. 05-0414 (Tex. June 30, 2006)
05-0414 COLUMBUS INDEPENDENT SCHOOL DISTRICT v. FIVE OAKS ACHIEVEMENT CENTER;
from Austin County; 14th district (14 04 00129 CV, 162 SW3d 812, 04 21 05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion
(Justice Willett not sitting)

Sisk Utilities, Inc. v. City of Greenville (Tex. June 30, 2006) No. 05-0601 (Tex. June 30, 2006)
05-0601 SISK UTILITIES, INC. v. CITY OF GREENVILLE, TEXAS;
from Hunt County; 5th district (05 04 01079 CV, 164 SW3d 931, 06 15 05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion (Justice Willett not sitting)

Texas Supreme Court Holds that Government Entities Waive Immunity
When They Sue or Assert Claims of Their Own In Pending Suits, Issues
New Opinion

Reata v. City of Dallas No. 02-1031 (Tex. June 30, 2006)(Johnson)
02-1031 REATA CONSTRUCTION CORPORATION v. CITY OF DALLAS;
from Dallas County; 5th district (05 01 01780 CV, 83 SW3d 392, 08 14 02)
motion to strike The State of Texas amicus curiae brief in support of motion for rehearing dismissed as moot
The Court withdraws its opinion issued April 2, 2004, and issues a substituted opinion.
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Wainwright,
Justice Medina, and Justice Green
Justice Brister delivered a concurring opinion, joined by Justice Hecht and Justice O'Neill
(Justice Willett not sitting)

The issue in this case is whether the City of Dallas has governmental immunity from suit for claims by Reata
Construction Corporation arising from the City’s alleged negligence. The court of appeals held that the City
had immunity. We conclude that the City does not have immunity from suit as to Reata’s claims which are
germane to, connected with, and properly defensive to the City’s claims, to the extent Reata’s claims offset
those asserted by the City. We reverse the court of appeals’ judgment and remand the case to the trial court
for further proceedings.

Reata also claims the City’s immunity from suit is waived by section 51.075 of the Local Government Code,
which provides that a home-rule municipality “may plead and be impleaded in any court.” See Tex. Loc. Gov’t
Code § 51.075. However, waiver of immunity for tort claims is governed by the Texas Tort Claims Act. See Tex.
Civ. Prac. & Rem. Code ch. 101; Miranda, 133 S.W.3d at 224-25 (holding that the governmental entity was
immune from suit for a tort unless it was expressly waived by the Tort Claims Act). Under rules of statutory
construction, we give precedence to the Tort Claims Act over section 51.075 because the Tort Claims Act is
the later-enacted, more specific statute regarding waiver of immunity in tort cases. See Tex. Gov’t Code §
311.026. Moreover, in Tooke v. City of Mexia, ___ S.W.3d ___, ___ (Tex. 2006), we have held that the phrase
“plead and be impleaded” in section 51.075 does not clearly and unambiguously reflect legislative intent to
waive immunity from suit. See Taylor, 106 S.W.3d at 697-98 (Tex. 2003).

June 23, 2006 - Suit by Parents of Drowning Victim May Proceed Under Tort
Claims Act

State of Texas v. Shumake No. 04-0460 (Tex. June 23, 2006)(Medina)
[Tort Claims Act, Recreational Use Statute, sovereign immunity, gross negligence]
04-0460 THE STATE OF TEXAS AND THE TEXAS PARKS AND WILDLIFE DEPARTMENT v. RICKY SHUMAKE
AND SANDRA SHUMAKE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF
KAYLA SHUMAKE, DECEASED; from Blanco County; 3rd district (03 03 00111 CV, 131 SW3d 66, 12 04 03)
The Court affirms the court of appeals' judgment.
Justice Medina delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Green, and Justice Johnson
Justice Wainwright delivered a concurring opinion
Justice Brister delivered a dissenting opinion
(Justice Willett not sitting)

(“In this case we consider the effect of the recreational use statute on a premises liability claim against the
state. Tex. Civ. Prac. & Rem. Code §§ 75.001-.004. The Tort Claims Act waives the state’s sovereign immunity
for premises defects or injuries caused by “a condition or use of . . . real property.” Tex. Civ. Prac. & Rem.
Code § 101.021. The State contends here, however, that the recreational use statute effectively reinstates
immunity for premises liability claims arising on state-owned recreational properties. We disagree. While the
recreational use statute raises the burden of proof by classifying the recreational user of state-owned property
as a trespasser and requiring proof of gross negligence, malicious intent, or bad faith, it does not reinstate
sovereign immunity but rather immunizes the state only to the extent of the elevated standard. Although we do
not agree in all respects with the court of appeals’ opinion, we agree with its judgment and accordingly affirm.
131 S.W.3d 66.”)

June 16, 2006 - No Waiver of Immunity in Traffic Signal Case Found

City of Grapevine v. Waddell No. 04-0933 (Tex., June 16, 2006)(Jefferson)
[TTCA, installation of traffic signal, no waiver of immunity]
04-0933 THE CITY OF GRAPEVINE, TEXAS v. AMY SIPES AND TANA (TREVINO) WADDELL; from Tarrant
County; 2nd district (02 02 00323 CV, 146 SW3d 273, 08 31 04)
The Court reverses in part the court of appeals' judgment and renders judgment.
Chief Justice Jefferson delivered the opinion of the Court
(“Under the Texas Tort Claims Act, a governmental unit retains immunity for claims based on the absence of
a traffic signal unless the absence is not corrected by the governmental unit within a reasonable time after
notice. Tex. Civ. Prac. & Rem. Code § 101.060(a)(2). The trial court held that this provision immunized the City
of Grapevine from liability based on its alleged negligence in failing to install a traffic signal within a
reasonable time after initially deciding to do so. The court of appeals disagreed and reversed in part the trial
court’s judgment. Because we conclude that “absence,” as used in subsection (a)(2), requires a prior
presence, we reverse in part the court of appeals’ judgment and render judgment dismissing the case for
lack of subject matter jurisdiction.”)

June 9, 2006 - Nonsuit in Trial Court Terminates Appeal

UTMB v. Blackmon No. 05-0594 (Tex. June 9, 2006)(per curiam)
[nonsuit while interlocutory appeal ILA is pending terminates appeal, DWOJ]
05-0594 THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON v. THE ESTATE OF DARLA
BLACKMON, BY ITS BENEFICIARY SHEILA SHULTZ AND SHEILA SHULTZ, INDIVIDUALLY; from Coryell
County; 10th district (10 03 00093 CV, 169 SW3d 712, 06 22 05) motion to dismiss, dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court vacates the court of appeals' judgment and dismisses the appeal for want of
jurisdiction. Per Curiam Opinion
(“Darla Blackmon died of pneumonia while incarcerated at a Texas Department of Criminal Justice
substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Blackmon’s
daughter, Sheila Shultz, brought suit for wrongful death and survival damages, claiming that UTMB negligently
failed to diagnose and treat her mother’s illness. Shultz alleged a waiver of sovereign immunity under the Tort
Claims Act’s exception for personal injury or death caused by a condition or use of tangible personal property.
See Tex. Civ. Prac. & Rem. Code § 101.021(2). UTMB filed a plea to the jurisdiction, which the trial court
denied, and then brought an interlocutory appeal. See id. § 51.014(a)(8).”)
(“While the petitioner's interlocutory appeal from its plea to the jurisdiction was pending in the court of
appeals, the respondent filed a nonsuit. We conclude that the nonsuit deprived the court of appeals of
jurisdiction, and we vacate its order and dismiss this interlocutory appeal for want of jurisdiction.”)

May 26, 2006 - Dismissal for Want of Interlocutory Jurisdiction Improper
Because Trial Court's Judgment Was Final

Childers v. Advanced Foundation Repair No. 05-0831 (Tex. May 26, 2006)(per curiam)
[Order appealed from was final, CoA erred in dismissing for want of interlocutory jurisdiction)
05-0831 STEVE CHILDERS v. ADVANCED FOUNDATION REPAIR, L.P.; from Kleberg County; 13th district (13
04 00193 CV, ___ SW3d ___, 08 18 05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per
Curiam Opinion The court of appeals erroneously determined Childers’s appeal to be interlocutory.
(“In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and
claims, based on the record in the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here.
AFR requested that the trial court dismiss the case “in its entirety,” and the trial court did exactly that. The trial
court’s Final Judgment is unequivocal: “This judgment is final, disposes of all parties and all claims in this
case, is appealable, and disposes of this case in the entirety.” Because the trial court’s order was all-
encompassing and, as the record confirms, disposed finally and completely of all claims and parties, the
court of appeals erred in deeming the appeal interlocutory and dismissing it for lack of jurisdiction. We note
that the federal approach is identical. See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87
(2000) (holding that an appeal may be taken of an order that compels arbitration and dismisses all claims
before the court). Without hearing oral argument, we grant Childers’s petition for review, reverse the court of
appeals’ judgment dismissing the case for lack of jurisdiction, and remand to the court of appeals to consider
the merits of Childers’s appeal. See Tex. R. App. P. 59.1, 60.2(d).”)

April 21, 2006 - Plea to the Jurisdiction Masqueraded as Motion for Summary
Judgment

T ommy Thomas v. Long No. 03-0204 (Tex. April 21, 2006)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Wainwright delivered t SHERIFF OF HARRIS COUNTY v. JEANNE LONG; from Harris County; 14th
district (14 02 00251 CV
(“This is an interlocutory appeal of a trial court’s denial of a jurisdictional plea. Although the plea was made as
part of a motion for summary judgment, the court of appeals had jurisdiction to consider the interlocutory
appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. We conclude that the court
erred in determining that it was without jurisdiction to consider the appeal. However, we dismiss the claims
relating to the respondent’s reinstatement to her employment because her failure to exhaust administrative
remedies deprived the trial court of subject matter jurisdiction over those claims.”)(“The trial court was without
subject matter jurisdiction to issue a declaratory judgment in this case and erred in denying Thomas’s
jurisdictional challenge.”)
Opinion below: Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003, revrs'd)
Trial Court: 281st District Court, Harris County; Trial Court Judge: Jane Nenninger Bland, now a Justice on the
First Court of Appeals and occasional Supreme Court Justice by assignment; Trial Court Case No.: 2001-
58372

April 7, 2006 - Supreme Court Overturns Rulings Favorable to Houston
Firefighter in Two Prior Appeals

City of Houston v. Jackson No. 04-0465 (Tex. April 7, 2006) (O'Neill)
[fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the court of appeals below,
law of case doctrine does not preclude Texas Supreme Court from reviewing issue in first, interlocutory appeal
]
04-0465 THE CITY OF HOUSTON v. ROBERT JACKSON; from Harris County; 1st district (01 02 00879 CV,
135 S.W.3d 891, 04 01 04) unopposed motion for leave to file post submission brief granted
The Court reverses the court of appeals' judgment and dismisses respondent's statutory penalty claim for
want of jurisdiction.
Justice O'Neill delivered the opinion of the Court (“Section 143.134(h) of the Texas Local Government Code
imposes a $1,000 penalty payable to an aggrieved fire fighter for each day a department head intentionally
fails to implement a decision of the Fire Fighters’ and Police Officers’ Civil Service Commission (the
“Commission”) under Section 143.131 or a decision of a hearing examiner under Section 143.129 that has
become final. Tex. Loc. Gov’t Code Section 143.134(h). The court of appeals held that the penalty provision
also applies to a grievance examiner’s unappealed recommendation under Section 143.130 of the Code. 135
S.W.3d 891. We hold that, by the provision’s plain language, it does not. Accordingly, we reverse the court of
appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of jurisdiction.”)

April 7, 2006 - The Home Owner Be Damned When the Building Permit Was
Issued By Mistake

City of Dallas v. Vanesko No. 04-0263 (Tex. April 7, 2006)(Green)
04-0263 CITY OF DALLAS, TEXAS, BOARD OF ADJUSTMENT OF THE CITY OF DALLAS, TEXAS, AND RAJ
SHARMA, IN HIS CAPACITY AS THE BUILDING OFFICIAL OF THE CITY OF DALLAS v. DOUG VANESKO AND
GRACE VANESKO; from Dallas County; 5th district (05 03 00022 CV, 127 SW3d 220, 11 19 03)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Medina, Justice Johnson, and Justice Willett
(“In this zoning case, we determine whether a city can enforce a zoning ordinance against a property owner
whose substantially completed new home has been built in violation of the ordinance, even though the city
had given preliminary approval to the owner’s building plans. We conclude that it can. ... The mere issuance
of a building permit does not render a city’s zoning ordinances unenforceable, nor does the fact that a permit
was issued in error entitle the property owner to a variance in every case. Were this so, the City would never
be able to correct errors in the permitting process. ... Because we conclude both that the Vaneskos’ hardship
was personal in nature and that the Board was not required to consider the erroneous issuance of a building
permit, we cannot say on the facts before us that a clear abuse of discretion occurred. Accordingly, the
judgment of the court of appeals is reversed, and judgment is rendered in favor of the City of Dallas.”)

Justice O'Neill delivered a dissenting opinion (“While I agree with the Court that “the mere issuance of a
building permit does not render a city’s zoning ordinances unenforceable, nor does the fact that a permit was
issued in error entitle the property owner to a variance in every case,” this doesn’t answer the question of what
evidence the board of adjustment could consider in deciding the Vaneskos’ variance request. All needs for a
variance that might arise after an erroneous permit has been issued are not by definition self-created,
personal hardships for which variances may not be granted. If that were so, homeowners would be strictly
liable for city errors regardless of the circumstances, marginalizing the need for boards of adjustment at all
and rendering other parts of the city’s ordinance meaningless. Because I believe the board of adjustment
may have reached its decision to deny the Vaneskos’ variance request by “fail[ing] . . . to analyze or apply the
law correctly,” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), I would afford the board and the Vaneskos
another chance. Accordingly, I would affirm the lower courts’ remand to the board of adjustment for
reconsideration, although on different grounds. Because the Court does not, I respectfully dissent.”)

C ity of White Settlement, Texas v. Superwash, Inc. No. 04-0340 (Texas, March 2, 2006)(Chief J. Jefferson)
from Tarrant County; 2nd district (02 -03 -00089 -CV, 131 S.W.3d. 249, 02 -26 -04)
The Court reverses the court of appeals' judgment in part and renders judgment.
Chief Justice Jefferson delivered the opinion of the Court

M arshal v. Housing Authority of the City of San Antonio NO. 04-0147 (Tex. March 2, 2006)
from Bexar County; 4th district (04 -02 -00821 -CV, ___ S.W.3d. ___, 11 -26 -03)
The Court vacates the court of appeals’’ judgment and opinion, vacates the trial court’’s judgment, and
dismisses the case as moot.

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