Webb v. City of Dallas TX ( 2003 )

REVISED JANUARY 16, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11398
ANN TENISON HEREFORD WEBB; LIZANN TENISON WEBB; BYRON JAMES
WEBB; CAMILLE ELIZABETH WEBB SEWELL
Plaintiffs - Appellees
v.
CITY OF DALLAS, TEXAS; CITY OF DALLAS PARKS AND RECREATION
DEPARTMENT; CITY OF DALLAS PARKS & RECREATION BOARD; PAUL
DYER, Director, City of Dallas Parks & Recreation Department
Defendants - Appellants
Appeal from the United States District Court
for the Northern District of Texas
December 16, 2002
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
KING, Chief Judge:
This interlocutory appeal requires us to decide whether, as
the district court held, Defendants are immune from suit based on
Texas’s doctrine of sovereign immunity. Resolution of this
question requires us to first decide whether the Plaintiffs have
constitutional standing to sue. Because we agree that Plaintiffs
have asserted a claim in this controversy sufficient to satisfy
Article III’s minimum constitutional standing requirements and that
No. 01-11398
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state sovereign immunity from suit does not bar Plaintiffs’ claims
against Defendants, we affirm the order of the district court to
the extent that it denied Defendants’ sovereign immunity from suit.
I. FACTS AND PROCEDURAL BACKGROUND
A. The Parties Involved and Legal Instruments at Issue
This case involves a dispute regarding deed restrictions on
property donated to the City of Dallas. Edward O. and Annie M.
Tenison (“the Tenisons”) had four children. Their son, Edward Hugh
Tenison, predeceased his parents. Edward Hugh Tenison was survived
by two children, Elizabeth Ann Tenison and Edward Hugh Tenison, Jr.
Elizabeth Ann Tenison was the grandmother of Plaintiff-Appellee Ann
Tenison Hereford Webb and the great-grandmother of Plaintiffs-
Appellees Lizann Tenison Webb, Byron James Webb and Camille
Elizabeth Webb Sewell (together, the “Webbs”). Hence, the Webbs
are the great-grandchildren and great-great-grandchildren of the
Tenisons.
On December 12, 1922, Edward O. Tenison executed his will, in
which he bequeathed $25,000 to each of his three living children:
Mrs. Cruger T. Smith, Mrs. Dan M. Craddock and Mr. James C.
Tenison. The will also created separate trusts in the amount of
$25,000 for each of his three grandchildren, including Elizabeth
Ann Tenison. Edward O. Tenison left the “rest, residue, and
remainder” of his estate to his wife, Annie M. Tenison. At the
time he executed the will, the Tenisons owned the land that is the
No. 01-11398
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subject of the current dispute.
On March 23, 1923, the Tenisons deeded 78.8 acres of real
estate located between East Grand Avenue and East Pike Road to the
City of Dallas in memory of their son, Edward Hugh Tenison. The
deed included the following restriction,
But this conveyance is made for the purposes of a public
park only, and upon the express condition that the
property shall always be used by the City of Dallas, for
the purposes of a public park for the use and enjoyment
of the people of the City of Dallas, and for such
purposes exclusively. Said park shall be known and
designated for all time as “Tenison Park.” And if said
property, or any part thereof, shall not be used for the
purposes of a Public Park, or if said property, or any
part thereof, shall be used for any purpose other than
public park purposes as above provided for, or should the
name of said park be changed from the above designated,
then and in each such event the right and title of the
City of Dallas to the property hereby granted shall
cease, and said property and all right and title thereto
shall at once revert to and vest in us or our heirs, and
it shall be lawful for us or our heirs to re-enter upon,
take, repossess and enjoy all and singular the property
hereby granted as in our former estate.
On March 29, 1923, the Tenisons donated a second tract of land to
the City of Dallas under the same terms and conditions as the first
conveyance.
Edward O. Tenison died in 1924. On October 5, 1925, Annie M.
Tenison executed a will, providing that,
[The] rest, residue and remainder of the property of
which I may die seized or possessed, or to which I may be
entitled at the time of my death, whether real, personal
or mixed, and wheresoever situated, I give, devise and
bequeath to my beloved children, Mrs. Cruger T. Smith,
Mrs. Dan M. Craddock, and James Charles Tenison.
Annie M. Tenison died in 1927.
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B. The Current Dispute
As the grantee under the deeds, the City of Dallas operated
two municipal golf courses on the property known as Tenison Park.
In 1998, the Dallas City Council approved a plan to redesign the
Tenison Park West Course, and the renovated golf course was opened
for business in October 2000. The Webbs allege that rising green
fees effectively excluded certain citizens from the use and
enjoyment of the property and that the name of the property was
also changed from “Tenison Park” to “Tenison Highlands.”
On November 22, 2000, the Webbs filed suit in federal court
against the City of Dallas, its Parks and Recreation Department and
Parks and Recreation Board and Park Director Paul Dyer, in his
official capacity (together the “City”). In general, the Webbs
claimed that the City “t[ook] said property and ha[ve] not used and
expressed intention not to use the property for purposes of a
public park.” More specifically, in their First Amended Complaint,
the Webbs sought a reverter of the property to them as heirs of the
Tenisons, a declaration that they have the right to immediately
reenter upon and take possession of the property, damages for
breach of the Dallas City Charter and Texas trust law and an
accounting of all profits realized by the City’s activities from
November 1999 through the date of final judgment in this case. The
Webbs further generally claimed, without particularizing the
specific relief sought, relief under a state trespass to try title
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cause of action.
The Webbs moved for partial summary judgment on their claims
for declaratory relief, trespass to try title and right of
reverter. The City moved for summary judgment on the basis that
the Webbs are not legally entitled to enforce restrictions in the
deeds and moved for judgment on the pleadings on the basis that the
doctrine of sovereign immunity precludes the Webbs from bringing
suit against the City.
C. The District Court Decision
On October 4, 2001, the United States Magistrate Judge
recommended that the district court deny all pending motions in
this case. By order dated October 17, 2001, the district court
adopted the “Findings and Recommendation of the United States
Magistrate Judge,” effectively denying the City’s motion for
summary judgment and for judgment on the pleadings.
The City appeals the district court’s order denying its
motion.
II. STANDARD OF REVIEW
This court reviews de novo the denial of a summary judgment
motion based on standing.1 This court also reviews de novo the
denial of a motion for judgment on the pleadings based on state
1
Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d
350, 356 (5th Cir. 1999).
No. 01-11398
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sovereign immunity.2 In adjudicating a motion for judgment on the
pleadings, the court may look only to the pleadings and must accept
all facts pleaded therein as true.3
III. ARTICLE III STANDING AND STATE SOVEREIGN IMMUNITY
The issues before the court on appeal are (1) whether the
Webbs claim an interest in the property sufficient to satisfy the
jurisdictional injury-in-fact requirement of Article III, and
(2) whether, even if Article III standing is found, the City is
nevertheless immune from suit under the doctrine of sovereign
immunity. Regarding the City’s argument that the Webbs lack a
legal interest to sue as “heirs” under the deeds, the district
court specifically determined that genuine issues of material fact
exist as to whether the Webbs are legal “heirs” of the Tenisons, as
that term is used in the relevant deeds. Regarding the City’s
argument that Texas’s sovereign immunity doctrine immunizes it from
the present suit, the district court concluded that the City waived
immunity from both suit and liability. On appeal, the City
contends that the Webbs have not satisfied the injury-in-fact
requirement for this court to have Article III jurisdiction and
that it has not waived immunity from suit such that subject matter
jurisdiction to entertain the merits of the Webbs’ claims is
2
PYCA Indus., Inc. v. Harrison County Waste Water Mgmt.
Dist., 81 F.3d 1412, 1417-20 (5th Cir. 1996).
3
St. Paul Fire & Marine Ins. Co. v. Convalescent Serv.,
Inc., 193 F.3d 340, 342 (5th Cir. 1999).
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present.
A. Standing under Article III
Initially, we must conclude that we have jurisdiction under
Article III of the United States Constitution before proceeding to
the merits of the City’s claim of sovereign immunity from suit.4
In response to the City’s motion for summary judgment that the
Webbs do not possess a right to enforce the deed restrictions as
“heirs” when the residuary clause in Annie M. Tenison’s will left
the “rest, residue and remainder” of her property to her three
children, the district court found that “genuine issues of material
fact as to whether plaintiffs are the ‘heirs’ of Edward O. and
Annie M. Tenison, as that term is used in the Tenison deeds,”
precluded summary judgment. On appeal, we are not called upon to
review the merits of the district court’s summary judgment
determination regarding the Webbs’ alleged ownership rights.
Rather, in order to review the discrete sovereign immunity question
on appeal, we must only determine that the minimum constitutional
requirements for standing are satisfied.5
The Webbs are not direct descendants of the named beneficiaries
4
See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 93-94 (1998); Calderon v. Ashmus, 523 U.S. 740, 745 & n.2
(1998); House the Homeless, Inc. v. Widnall, 94 F.3d 176, 179 n.7
(5th Cir. 1996).
5
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)
(discussing the Cohen doctrine and the limited jurisdiction of an
appellate court to review “an important issue completely separate
from the merits of the action.”).
No. 01-11398
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of the residuary clause of Annie M. Tenison’s will. Moreover,
neither of the Tenison wills specifically references the future
interest created by the Tenison Park conveyances to the City.
Nevertheless, in their First Amended Complaint, the Webbs have
undoubtedly asserted an interest in this property dispute
sufficient to satisfy the injury-in-fact jurisdictional requirement
of the Article III standing doctrine.
Standing to sue is the “core of Article III’s case-or-
controversy requirement, and the party invoking federal
jurisdiction bears the burden of establishing its existence.”6 To
invoke federal jurisdiction, the Webbs are required to allege facts
demonstrating that they have suffered an injury-in-fact — an
invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical.7 This requirement is part of the “irreducible
constitutional minimum” required to establish Article III
standing.8
Here, the Webbs have asserted a “personal stake” in the
dispute that is concrete and particularized.9 As alleged, the
6
Id. at 103-04.
7
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992); Gore, Inc. v. Espy, 87 F.3d 767, 771 (5th Cir. 1996).
8
Riley v. St. Luke’s Episcopal Hosp., 196 F.3d 514, 532
(5th Cir. 1999).
9
Raines v. Byrd, 521 U.S. 811, 818 (1997).
No. 01-11398
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conduct of the City in violating the deed restrictions has affected
the Webbs in a personal, individual and particularized way because
as “heirs” under the deeds, they have a personal stake in seeing
that the City adheres to the restrictions on the use of the Tenison
property.10
The Webbs may ultimately fail to prove ownership or any
property interest entitlement to the Tenison property. Facially,
however, the First Amended Complaint (including its reference to
the express language of the relevant deeds) avers that the Webbs
suffered a concrete constitutional injury-in-fact by the City’s
failure to operate the Tenison property in accordance with the deed
restrictions and that through the express conveyance of a fee
simple subject to a condition subsequent, the Webbs can now redress
this injury by exercising their right of reentry as “heirs.”11
These allegations assert an interest in the property dispute
sufficient to meet the minimum constitutional requirements of
Article III.
B. Sovereign Immunity
Having dispensed with the question whether the Webbs have
constitutional standing to pursue their claims, we now turn to the
10
Id.11
See Lawyers Trust Co. v. City of Houston, 359 S.W.2d
887, 890 (Tex. 1962) (discussing the characterization of a fee
simple determinable and a fee simple subject to a condition
subsequent); Gutierrez v. Rodriguez, 30 S.W.3d 558, 560 (Tex.
App.– Texarkana 2000, no pet.).
No. 01-11398
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question whether the City has waived immunity from suit.
In answering a question where, as here, jurisdiction is based
on diversity of citizenship, we have a duty to apply the forum
state’s jurisprudence.12 Further, where, as here, we are asked to
resolve a sovereign immunity question in a diversity of citizenship
case, we must defer to the sovereign immunity law of the forum
state.13
Under Texas law, immunity from liability and immunity from
suit are two distinct principles.14 Immunity from liability
protects the State from a judgment against it even if the State
legislature has expressly consented to suit; in contrast, immunity
from suit bars an action against the State unless the State
expressly consents to suit.15 The City concedes that it waived
immunity from liability by accepting the deed-restricted conveyance
of land from the Tenisons. It thus only asserts immunity from
suit, not liability.
We note at the outset that under Texas law, a suit against a
municipality or its agencies arising out of the performance of its
governmental duties or to recover for alleged breach of a contract
is deemed to be a suit against the State of Texas for purposes of
12
Erie R. Co. v. Tompkins, 304 U.S. 64, 79-80 (1938).
13
Tompkins v. El Paso, 449 F.2d 842, 844 (5th Cir. 1971).
14
Id. at 405.
15
Id.
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state sovereign immunity unless some special exception applies.16
The Webbs principally aver that immunity from suit has been
expressly waived by statute and by express provisions of the Dallas
City Charter and, alternatively, that immunity from suit has been
waived by the City’s conduct in accepting the deed-restricted
conveyances here. The City disagrees with both arguments.
Before turning to the question of waiver of immunity from suit
under Texas law, however, we briefly address the Webbs’ initial
contention that the doctrine of sovereign immunity does not even
apply to the instant lawsuit because this is an action in rem to
recover title to and possession of land.
1. In Rem Proceeding
The Webbs essentially contend that sovereign immunity does not
bar this proceeding because they are simply seeking a declaration
of what already belongs to them. It is true that an entity or
person whose rights have been violated by the unlawful action of a
state official may bring suit against that state official,
individually, to remedy the violation or prevent its occurrence and
that such a suit is not a suit against the State requiring
statutory authorization because the conduct of the agent or
16
See Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 408
(Tex. 1997); Gates v. City of Dallas, 704 S.W.2d 737, 738 (Tex.
1986); Cranford v. City of Pasadena, 917 S.W.2d 484, 487 (Tex.
App. – Houston [14th Dist.] 1996, no writ); Avmanco, Inc. v. City
of Grand Prairie, 835 S.W.2d 160, 165 (Tex. App. – Fort Worth
1992, writ dism’d as moot).
No. 01-11398
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official is unauthorized and thus “ultra vires.”17 However, the
claims raised by the Webbs do not fall within this narrow class of
claims excepted from the general rule requiring statutory
authorization to maintain a suit against the State.18 The Webbs
have not sued officials in their individual capacities, and the
Texas Supreme Court has clearly held that suits against the State
or its agencies for title to land or suits against the State or its
agencies seeking injunctive relief to enforce contractual rights
17
See, e.g., Tex. Highway Comm’n v. Tex. Assoc. of Steel
Importers, Inc., 372 S.W.2d 525, 530 (Tex. 1963) (concluding that
legislative consent was not required to bring a declaratory
judgment suit against the Highway Commission); Cobb v.
Harrington, 190 S.W.2d 709, 712 (Tex. 1945) (holding that
legislative consent was not required for a declaratory judgment
suit against the State Comptroller to determine the
constitutionality of a tax statute).
18
See, e.g., Tex. Natural Resource Conservation Comm’n v.
IT - Davy, 74 S.W.3d 849, 861 (Tex. 2002) (making clear that a
plaintiff cannot circumvent the doctrine of sovereign immunity by
seeking declaratory relief that essentially resolves a breach of
contract issue); Federal Sign v. Tex. S. Univ., 951 S.W.2d 401,
408 (Tex. 1997) (holding that a suit seeking injunctive relief to
enforce contractual rights is necessarily a suit against the
State that cannot be maintained without legislative permission);
State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961) (concluding that a
suit for title to land against the State or its agency cannot be
maintained without legislative consent); Herring v. Houston Nat’l
Exchange Bank, 253 S.W. 813, 814 (Tex. 1923) (stating that a suit
against state officers to require them to perform a contract by
the State or to establish the validity of a contract by the State
is a suit against the State itself); Tex. Parks & Wildlife Dept.
v. W.M. Callaway, 971 S.W.2d 145, 152 (Tex. App. – Austin 1998,
no writ) (holding that “[a]lthough [plaintiff’s] request for
declaratory relief is not premised expressly on breach of
contract,” legislative consent is still required because, in
essence, the plaintiff is seeking a declaration of his rights
under the easement and an order enforcing those rights).
No. 01-11398
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are necessarily suits against the State requiring legislative
authorization to sue.19 Further, we note that in addition to
injunctive and declaratory relief, the Webbs also seek legal relief
in the form of an accounting and money damages for the City’s
alleged breach of the covenants and of the Dallas City Charter.
Thus, their in rem distinction is misplaced.20
2. Express Waiver of Sovereign Immunity
The Webbs persuaded the district court that the City had
expressly waived its immunity from suit. The Texas Local
Government Code states that home-rule municipalities, such as the
City of Dallas, “may plead and be impleaded in any court.”21
Further, the Dallas City Charter states that the City of Dallas
shall have the power “to sue and be sued.”22 The Dallas City
19
IT - Davy, 74 S.W.3d at 861; Federal Sign, 951 S.W.2d
at 408; Lain, 349 S.W.2d at 582.
20
See, e.g., Federal Sign, 951 S.W.2d at 404-05
(claimants seeking both equitable and legal relief were required
to secure legislative consent to sue the state agency).
21
Section 51.075 of the Texas Local Government Code,
entitled “Authority Relating to Lawsuits,” states that “[t]he
municipality may plead and be impleaded in any court.” TEX. LOCAL
GOV’T CODE ANN. § 51.075 (Vernon 1999).
22
Section 1(2) of Chapter II, entitled “Powers of the
City,” of the Dallas City Charter provides, in relevant part,
that,
The City of Dallas, as such body politic and corporate,
shall have perpetual succession and shall have the
following powers:
(1) to use a corporate seal;
(2) to sue and be sued;
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Charter provision does not restrict the forum for suits against the
City to courts of the State.23 The district court relied on these
two provisions to find an express waiver of sovereign immunity from
suit here. The City argues this conclusion is in error, contending
that the code and charter provisions relied on by the district
court are simply confirmations that the City of Dallas has the
corporate capacity to sue and be sued. Alternatively, buttressing
its argument with four state decisions from Texas courts of
appeals, it seeks to have this court certify the express waiver
issue to the Texas Supreme Court as an “unsettled” question of
state law.
In Missouri Pacific Railroad Co. v. Brownsville Navigation
District,24 the Texas Supreme Court held that a statute with
language similar to that found in § 51.075 and the Dallas City
Charter provision waived immunity from suit. The statute in that
case states that,
All navigation districts . . . may sue or be sued in all
courts of this state in the name of such navigation
district, and all courts of this state shall take
(3) to plead and be impleaded in all courts;
(4) to institute and prosecute suits without
giving security therefore, and to appeal from
judgments of the courts . . . .
Dallas, Tex., Charter ch. II, § 1(2) (1999).
23
Id.
24
453 S.W.2d 812 (Tex. 1970).
No. 01-11398
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judicial notice of the establishment of all districts.25
The Texas Supreme Court stated that this language “quite plain[ly]”
“gives general consent for District to be sued in the courts of
Texas” such that immunity from suit is expressly waived.26
More recently, in Travis County v. Pelzel & Assoc.,27 the Texas
Supreme Court again addressed whether a statute “clearly and
unambiguously” waives the State’s immunity from suit. Section
89.004(a), entitled “Presentation of Claim,” provides that “[a]
person may not sue on a claim against a county unless the person
has presented the claim to the commissioners court and the
commissioners court has neglected or refused to pay all or part of
the claim.”28 The court held that this language did not waive
Travis County’s immunity from suit because the statute did not
state clearly and unambiguously that Travis County could be sued.
Rather, the court found that the provision just as easily could
simply create a condition precedent to suit.29 Important to this
conclusion was the finding that the original statutory language
providing that the county may “sue and be sued” was deleted in 1879
25
Id. at 813 (emphasis added).
26
Id.
27
77 S.W.3d 246 (Tex. 2002).
28
TEX. LOCAL GOV’T CODE ANN. § 89.004(a) (Vernon 1999).
29
Pelzel, 77 S.W.3d at 250.
No. 01-11398
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to leave text “largely resembling the current statute” in place.30
As stated by the Texas Supreme Court, “well over a hundred years
ago, the Legislature deleted the only language arguably waiving
sovereign immunity, suggesting that it intended to preserve
counties’ immunity from suit.”31 In so concluding, the court
discussed Missouri Pacific in some detail. However, it did not
overrule its prior holding. Instead, the Pelzel court
distinguished the less-than-clear legislative expression of waiver
in the “Presentation of Claim” statute from the “sue and be sued”
language applicable to navigation districts found by the Missouri
Pacific court to “quite plain[ly]” waive immunity from suit.32
As stated, the City asserts that four Texas courts of appeals
have held that similar “sue and be sued” provisions do not waive
the State’s immunity from suit.33 While this is an accurate
statement of Texas law, it is a well-settled principle that in
diversity cases, we “seek guidance by looking to the precedents
established by intermediate state appellate courts” only when the
30
Id. at 249-50.
31
Id. at 250.
32
Id.
33
See, e.g., City of Dallas v. Reata Constr. Corp., 83
S.W.3d 392, 398 (Tex. App. – Dallas 2002, no pet.); Jackson v.
City of Galveston, 837 S.W.2d 868, 871 (Tex. App. – Houston [14th
Dist.] 1992, writ denied); Townsend v. Memorial Med. Ctr., 529
S.W.2d 264, 267 (Tex. Civ. App. – Corpus Christi 1975, writ ref’d
n.r.e.); Childs v. Greenville Hosp. Auth., 479 S.W.2d 399, 401
(Tex. Civ. App. – Texarkana 1972, writ ref’d n.r.e.).
No. 01-11398
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state supreme court has not spoken on an issue or there has been
some intervening change in the law that requires us to make an Erie
guess regarding how the Texas Supreme Court would most likely
decide an issue.34 Here, the Texas Supreme Court has addressed the
question we are called upon to now answer, and the state appellate
court decisions cited by the City do not persuade us to veer from
this precedent. The cases cited by the City, for the most part,
either follow pre-Missouri Pacific law or completely fail to
mention Missouri Pacific.35 Moreover, as argued by the Webbs, the
City’s argument that the “sue and be sued” provision is just a
recognition of its corporate capacity to sue and be sued is also
belied by the fact that the vast majority of state courts of
appeals to address the express legislative waiver question in the
context of similar “sue and be sued” clauses follow Missouri
34
Howe v. Scottsdale Ins. Co., 204 F.3d 624, 628 (5th
Cir. 2000); see also Herrmann Holdings Ltd. v. Lucent Techs.
Inc., 302 F.3d 552, 558 (5th Cir. 2002) (“[I]n deciding this
case, we are required to make an Erie guess as to what the Texas
Supreme Court would most likely decide.”)
35
See, e.g., Reata Constr. Corp., 83 S.W.3d at 398(following Jackson (discussed infra) without citing to Missouri
Pacific, to find the “sue and be sued” provision “simply speak[s]
to the City’s capacity to sue and its capacity to be sued when
immunity has been waived.”) (emphasis in original); Jackson, 837
S.W.2d at 871 (simply following Townsend (discussed infra)
without analysis); Townsend, 529 S.W.2d at 267 (relying solely on
Childs (discussed infra), which, in turn, relied solely on cases
decided before Missouri Pacific, to hold that a hospital district
is immune from suit despite a “sue and be sued” statutory
provision); Childs, 479 S.W.2d at 401 (relying on pre-Missouri
Pacific cases to find, without discussion, no waiver of immunity
from suit).
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Pacific as controlling Texas Supreme Court precedent.36
We find controlling Texas Supreme Court authority for the
district court’s holding that the City has expressly waived its
immunity from suit in this case and see no need to certify the
36
See, e.g., Tarrant County. Hosp. Dist. v. Henry, 52
S.W.3d 434, 448 (Tex. App. – Fort Worth 2001, no pet.) (“It is
well settled that this type of [sue and be sued] statutory
provision is a consent to suit, resulting in waiver of immunity
from suit.”); Alamo Comm. Coll. Dist. v. Obayashi Corp., 980
S.W.2d 745, 748 (Tex. App. – San Antonio 1998, pet. denied)
(stating that “[b]y subjecting junior college districts [] to the
same general law applicable to independent school districts
[through a provision that states the district can sue and be
sued], it appears to us, clearly and unambiguously, the Texas
Legislature granted its consent to sue junior college community
districts and we so hold”); Engelman Irrigations Dist. v. Shields
Bros., Inc., 960 S.W.2d 343, 347 (Tex. App. – Corpus Christi
1997) (finding that the irrigation district was not entitled to
immunity from suit because of a “sue and be sued” clause), pet.
denied per curiam, 989 S.W.2d 360 (Tex. 1998); Knowles v. City of
Granbury, 953 S.W.2d 19, 23 (Tex. App. – Fort Worth 1997, pet.
denied) (“As a home-rule municipality, Granbury may sue and be
sued. Had it wanted to exempt itself from liability, it could
have . . . Because the Local Government Code and Granbury’s
charter provide that the city may be sued, its immunity from suit
is [] waived.”); Avmanco, Inc. v. City of Grand Prairie, 835
S.W.2d 160, 165 (Tex. App. – Fort Worth 1992, writ dism’d as
moot) (“While there is no general law waiving the State’s
immunity from suit where liability is sought because of breach of
contract, the City is liable here because both the State and the
City have enacted legislation providing their respective consents
to suits against the City. Furthermore, the city charter of
Grand Prairie itself provides that the City may sue and be
sued.”); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 593
& n.3 (Tex. App. – Austin 1991, writ denied) (concluding that
through a “sue and be sued” provision, the Texas Legislature gave
its consent for an independent school district to be sued).
No. 01-11398
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question of express waiver to the Texas Supreme Court.37 Express
legislation provides that the City may be sued. As a home-rule
municipality, the City may exempt itself from suit. It has not
done so here.
As its resolution is not essential to our holding, we do not
address the Webbs’ final argument that the City waived its right to
assert immunity from suit by “accepting the benefits of the gifts,
subject to the terms and conditions thereof.”
IV. CONCLUSION
Plaintiffs have asserted a claim in this controversy
sufficient to satisfy the jurisdictional requirements of Article
III. Further, sovereign immunity from suit does not bar
Plaintiffs’ suit against the City of Dallas. We AFFIRM the
district court’s order insofar as it denied the City sovereign
immunity from suit.
37
See Vaught v. Showa Denko K.K., 107 F.3d 1137, 1142
(5th Cir. 1997) (holding that certification “is appropriate only
if it appears to the certifying court that there is no
controlling precedent in the decisions of the Supreme Court of
Texas”) (internal quotation omitted).