Governmental Immunity Review: recent cases and controversies Presented to: Texas Rural Water Association/Texas Water Conservation Association Water Law Seminar: Waves of Change Austin, Texas January 11, 2016 Craig T. Enoch Amy (Saberian) Prueger Enoch Kever pllc 5918 W. Courtyard Blvd., Suite 500 Austin, TX 78730 512.615.1200

Wasson Interests, Ltd. v. City of Jacksonville Any act that is proprietary in nature is not done as a branch of the State but is instead for the private advantage of the city and its residents.

Wasson Interests, Ltd. v. City of Jacksonville Texas is inviolably sovereign. BUT: A city has no immunity of its own. City only afforded the State’s immunity when acting as the State’s agent and performing governmental functions common-law distinction between governmental and proprietary acts (proprietary-governmental dichotomy) Distinction had been applied in tort-claims context Now - applies in the contracts-claim context

Wheelabrator Air Pollution Control, Inc. v. City of San Antonio The operation of a Public Utility is proprietary Claim for attorney’s fees does not implicate governmental immunity

Wheelabrator Air Pollution Control, Inc. v. City of San Antonio Court applied Wasson Interests, Ltd. v. City of Jacksonville TTCA: operation of a public utility is a proprietary function. Tex. Civ. Prac. & Rem. Code § 101.0215(b)(1) the contract between CPS Energy and Wheelabrator was for the proprietary function of maintaining and operating a public utility. attorney’s fees claim was ancillary to Wheelabrator’s breach of contract claim, governmental immunity also would not attach

Chapter 271: Waiver of Immunity Zachry Construction Corp. v. Port of Houston Auth. of Harris County Question whether Chapter 271’s limitations on recovery define and restrict the scope of the waiver of immunity if so, whether Chapter 271 waives a local governmental entity’s immunity from suit on a contract claim for delay damages the contract does not call for

Chapter 271: Waiver of Immunity Zachry Construction Corp. v. Port of Houston Auth. of Harris County Held: Yes - Chapter 271’s limitations on recovery does define and restrict the scope of the waiver of immunity the delay damages sought by the plaintiff were permitted by Chapter 271, thus waiving the governmental entity’s immunity from suit

Chapter 271: Waiver of Immunity Zachry Construction Corp. v. Port of Houston Auth. of Harris County Dissent “the balance due and owed by the local governmental entity under the contract” Tex. Loc. Gov’t Code § 271.152 = the balance due and owed under the specific contract at issue Contract at issue did not provide for delay damages: Chapter 271’s strict limit of immunity waiver not only for specific types of contracts but also for specific types of damages.

Chapter 271: Government Employee Contracts Damuth v. Trinity Valley Community College Question: Does Chapter 271 waive immunity from suit for a breach of contract claim concerning a government employment contract? Held: Chapter 271 waives immunity for government employment contracts because it is a contract for providing services.

Chapter 271: Waiver of Immunity Byrdson Services, LLC v. South East Texas Regional Planning Commission Question: Does Chapter 271 waive immunity from suit for a breach of contract claim under a contract for rebuilding and repair work done on behalf of a governmental entity? Held: Chapter 271 waives immunity for a subcontract for rebuilding and repair work because it is a contract for providing services that the governmental entity was obligated to perform.

Texas Tort Claims Act Premises Defects Claim Sampson v. Univ. of Tex. at Austin Law school professor tripped over an extension cord that was strung at shin height across a sidewalk for a tailgate party at UT. Questions: Was the unsecured extension cord strung across the sidewalk a premises defect or a condition or use of tangible personal property? If the condition was a premises defect, did UT have actual knowledge of the defect?

Texas Tort Claims Act Premises Defects Claim Sampson v. Univ. of Tex. at Austin Tex. Civ. Prac. & Rem. Code § 101.021(2): waives immunity from suit for “personal injury and death 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.” Claims based on premises defects vs. claims based on a condition or use of tangible personal property

Texas Tort Claims Act Premises Defects Claim Sampson v. Univ. of Tex. at Austin Held: The unsecured extension cord strung across the sidewalk was a premises defect. UT did not have actual knowledge of the defect. Dissent: A fact issue existed as to whether UT had actual knowledge of the dangerous condition.

Derivative Immunity Brown & Gay Eng’g, Inc. v. Olivares Question: Can a governmental unit’s immunity extend to a private contractor acting on behalf of the unit? Held: Governmental immunity should not be extended to private entities performing authorized governmental functions for which the government would be immune. BUT - distinction between contractors who exercise independent discretion and those whose actions are taken by the government through the contractor

Ultra Vires Claims Houston Belt & Terminal Ry. Co. v. City of Houston and Daniel Krueger, in his Official Capacity as Director of Public Works & Engineering Question: Does the ultra vires exception apply to a government officer when he or she has some discretion? Held: A government officer with some discretion to interpret and apply a law may nonetheless act without legal authority, and thus ultra vires, if he exceeds his granted authority or if he acts in conflict with the law itself.

Inverse Condemnation Harris Cnty. Flood Control Dist. v. Kerr Question: Does a failure to implement a flood control plan, yet permitting upstream development, constitute a constitutional taking? Held: Finding a taking under the facts in this case would vastly expand the liability of governmental entities, allowing property owners to allege a taking and swallow much of sovereign immunity.

Governmental Immunity Review: recent cases and controversies Presented to: Texas Rural Water Association/Texas Water Conservation Association Water Law Seminar: Waves of Change Austin, Texas January 11, 2016 Craig T. Enoch Amy (Saberian) Prueger Enoch Kever pllc 5918 W. Courtyard Blvd., Suite 500 Austin, TX 78730 512.615.1200