City of Galveston v. State

Decision Date02 March 2007
Docket NumberNo. 04-0890.,04-0890.
Citation217 S.W.3d 466
PartiesCITY OF GALVESTON, Petitioner, v. STATE of Texas, Respondent.
CourtTexas Supreme Court

Ramon G. Viada III, Abrams Scott & Bickley, L.L.P., Houston, for Petitioner.

Greg Abbott, Atty. Gen., Rance L. Craft, Barry Ross McBee, Edward D. Burbach, Rafael Edward Cruz, Alan Grundy, Office of Attorney General, Austin, for Respondent.

David J. LaBrec, Katherine Elizabeth Anderson, Allyson Elizabeth Holt, Strasburger & Price, L.L.P., Dallas, Kevin D. Jewell, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, for Amicus Curiae.

Justice BRISTER delivered the opinion of the Court, in which Justice O'NEILL, Justice GREEN, Justice MEDINA, and Justice JOHNSON joined.

In the 171 years since the Alamo, San Jacinto, and independence, it appears that Texas has never sued one of its cities for money damages. No one questions that the Legislature may prescribe whether it can do so, and under what conditions. But as the State relies on no such legislation here, the question is whether we should fill that gap. As disputes like this one have apparently been settled throughout Texas history by political rather than judicial means, we hold that the party seeking to change the status quo ought to bear the burden of changing the rules.1

This case is not a routine dispute about property damage. The taxpayers have already paid for the roadway repairs here; the only question is whether Galveston taxpayers rather than Texas taxpayers should bear the cost. That is as much a question of allocating taxes as of allocating fault, and not one as to which courts have special expertise. Accordingly, we affirm the judgment of the trial court dismissing this case.

I. Background

As part of a 1982 agreement with the Texas Department of Transportation for construction of State Highway 275, the City of Galveston agreed to move and maintain nearby utilities. One of those utilities, a City water line, ruptured in 2001 and allegedly caused $180,872.53 in damages to the highway.

The Attorney General filed suit in the name of the State of Texas to recover damages for the City's "negligent installation, maintenance, and upkeep" of its water line and the resulting damage to state property. The City filed a plea to the jurisdiction, special exceptions, and a motion for summary judgment asserting governmental immunity; the trial court granted the jurisdictional plea. A divided court of appeals reversed, holding that cities have no immunity from suit by the State.2 We granted the City's petition, and now reverse.

II. Has the Legislature Authorized the State to Sue Cities?

"We take as our starting point the premise that in Texas a governmental unit is immune from tort liability unless the Legislature has waived immunity."3

Political subdivisions in Texas have long enjoyed immunity from suit when performing governmental functions like that involved here.4 While this immunity can be waived, we have consistently deferred to the Legislature to do so;5 indeed, we have said immunity from liability "depends entirely upon statute."6 For its part, the Legislature has mandated that no statute should be construed to waive immunity absent "clear and unambiguous language."7 The State asserts no such statute here.

This high standard is especially true for home-rule cities like Galveston. Such cities derive their powers from the Texas Constitution, not the Legislature8 They have "all the powers of the state not inconsistent with the Constitution, the general laws, or the city's charter."9 Among those powers is, again, immunity from suit for governmental functions.10 The question thus is not whether any statute grants home-rule cities immunity from suit, but whether any statute limits their immunity from suit.11 Such limits exist only when a statute speaks with "unmistakable clarity."12 Again, the State asserts no such statute here.

This heavy presumption in favor of immunity arises not just from separation-of-powers principles but from practical concerns. In a world with increasingly complex webs of government units, the Legislature is better suited to make the distinctions, exceptions, and limitations that different situations require. The extent to which any particular city, county, port, municipal utility district, school district, or university should pay damages involves policy issues the Legislature is better able to balance.13 For example, the Legislature's decision to waive immunity for the University of Texas at Tyler14 but not for the University of Houston15 is not the kind of line courts can easily draw. The Legislature can also enact damage caps that limit the impact of liability,16 and create exceptions for particular activities.17 Given the Legislature's recent efforts to channel government claims away from litigation, we have endeavored to avoid across-the-board rulings abrogating immunity.18

The Legislature has waived cities' immunity from suit in a few general statutes. In 1969, the Texas Tort Claims Act waived immunity for certain torts.19 More recently, immunity for local government entities was waived in suits based on written contracts.20 These statutes are not blanket waivers: they apply only to specified claims, impose limits on damages,21 differentiate among government entities,22 and exempt a variety of activities from any waiver at all.23

Although the State's claim here might have been asserted as either a tort or breach of contract,24 the State has never argued or pleaded that it falls under either of these statutes. Nor does it assert that the Legislature has ever passed a general statute unambiguously and unmistakably authorizing the State to sue political subdivisions for money damages. Nor does any statute specifically authorize such suits by the Attorney General, who exercises only those powers authorized by the Constitution or statute.25

This is not a question of power, but of authority. While the State has the power, for example, to impose a personal income tax, it has no authority to do so without a statewide vote.26 Likewise, the State has the power to waive immunity from suit for cities, but no authority to do so without the Legislature's clear and unambiguous consent. There is no such authority here.

The Attorney General or the Department of Transportation could have requested legislative consent to sue the City, but neither tried. And judging from the alarmed briefs filed in this case on behalf of hundreds of Texas counties, cities, school boards, mental health centers, and water districts, it is questionable whether they would have succeeded. Given the novelty of this suit, the political nature of all the parties, and the sensitivity of these intergovernmental issues, "[t]he decision as to who should bear responsibility for governmental employees' misconduct should be made by the peoples' representatives."27

III. Should This Court Authorize the State to Sue Cities?

The State argues that unambiguous legislation is unnecessary here because the question is not one of waiver, but of the existence of immunity in the first instance. "[I]t remains the judiciary's responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance."28 But this distinction is a fine one, as waiving immunity or finding it nonexistent have precisely the same effect.29 Due to the risk that the latter could become a ruse for avoiding the Legislature, courts should be very hesitant to declare immunity nonexistent in any particular case.

It is true that we recently held in Reata Construction Corp. v. City of Dallas that immunity does not exist when a government affirmatively files suit for money damages, although the Legislature had never said so.30 But that rule had been recognized for decades in both Texas and federal courts.31 By contrast, the parties here do not point to a single case in which the State has ever been allowed to sue a city for money damages. The court of appeals cited one case each from Texas, Maryland, and Ohio to support its judgment.32 But in the Texas case, a statute unambiguously rendered cities liable for workers' compensation penalties,33 a circumstance not present here. And while the common law of governmental immunity in Maryland and Ohio is certainly interesting, it is entirely alien to our own— Maryland cities and counties have long been subject to contract suits by private parties,34 and Ohio courts have subsequently abolished immunity altogether.35

Moreover, none of the policies behind governmental immunity were implicated in Reata,36 while they would be here. First, when the State sues a private party, the general public stands to lose nothing;37 but when the State sues a city, a substantial part of the public will no longer be shielded "from the costs and consequences of improvident actions of their governments."38 While this case involves $180,000 (a small amount relative to most government budgets), the rule we adopt today must apply even if the claim is for $180 million, or billion. If a levee or skyscraper collapses, issues of fault and causation pale in comparison to issues of who can bear and repair such staggering losses. These are precisely the kinds of issues more suited to the Legislature than the courts.

Second, there are jurisdictional problems in asking courts to enforce a judgment against a government entity, even if it is a local one.39 If the State can sue cities successfully, what will the courts do if the cities refuse to pay? Will courts order them to raise taxes, or impound funds for police, fire, or sanitation workers so the State can collect? Or will the court order execution on city property—perhaps its parks, buses, water works, or airport?

Third, there is the problem of fundamental fairness. As we noted in Reata, "it would be fundamentally unfair to allow a governmental entity to assert affirmative claims against a...

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