1. 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

2. 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.

3. 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

4. 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

5. 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 § (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

6. 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

7. 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

8. 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 § =
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.

9. 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.

10. 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.

11. 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?

12. Texas Tort Claims Act Premises Defects Claim
Sampson v. Univ. of Tex. at Austin
Tex. Civ. Prac. & Rem. Code § (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

13. 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.

14. 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

15. 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.

16. 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.

17. 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