Ltts Charter School, Inc. D/B/A Universal Academy v. C2 Construction, Inc.

IN THE SUPREME COURT OF TEXAS

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No. 09-0794

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LTTS Charter School, Inc.

d/b/a Universal Academy, Petitioner,

v .

C2 Construction, Inc.,

Respondent

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Fifth

District of Texas

════════════════════════════════════════════════════

Argued December 7, 2010

Justice Guzman , joined by

Chief Justice Jefferson and Justice Medina ,

dissenting.

A party’s ability to take an interlocutory appeal is a limited exception

to the general rule that only final orders are appealable. As applicable here,

the contours of that exception are found in sections 51.014(a )( 8) and 101.001(3) of the Civil Practice and Remedies Code.

Despite these limits, the Court embarks on a perilous expedition through the

Education Code in an attempt to locate some indicia that the Legislature

intended to allow privately run, open-enrollment charter schools to take this

circumscribed form of appeal. In so doing, the Court ventures beyond the narrow

procedural question presented in this case: whether a privately run,

open-enrollment charter school is a “governmental unit” as defined by section

101.001(3) of the Civil Practice and Remedies Code. If it is, then an

interlocutory appeal is proper from denial of a plea to the jurisdiction by the

school, as authorized by section 51.014(a )( 8). But,

because it is not, I would affirm the court of appeals. Privately run,

open-enrollment charter schools do not meet the Legislature’s definition as set

out in section 101.001(3), and therefore no interlocutory appeal may be taken

from an order granting or denying a plea to the jurisdiction by such a

school.

Moreover, not only does the Court allow for an interlocutory appeal that

is contrary to the expressed intent of the Legislature, the Court has also

effectively answered an important substantive question that is not before us:

what type of immunity does a privately run, open-enrollment charter school

possess? Specifically, do such schools: (1) possess governmental immunity from

suit, (2) merely have immunity from liability, or (3) lack immunity

entirely? The Court’s reasoning, while masquerading as an answer to the narrow

procedural issue before us, portends to address the merits of this immunity

question. By doing so, the Court provides courts below with a signal that such

schools possess immunity from suit. As a result, a private, nonprofit

corporation can take on the mantle of governmental immunity, leaving other

litigants wrongfully deprived of their day in court and without an opportunity

to have this issue addressed through the rigors of our adversarial system.

Accordingly, I must respectfully dissent.

I.

Interlocutory Appeal Under Section 51.014(a )( 8)

LTTS Charter

School, Inc. (LTTS ), is a private, nonprofit

corporation, operating an open-enrollment charter school. LTTS does so under

authority of a charter issued by the State Board of Education, pursuant to the

charter school regime established by Chapter 12 of the Education Code. It is

being sued by C2 Construction for breach of contract relating to the

construction of new facilities. LTTS filed a plea to the jurisdiction, asserting

governmental immunity. The trial court denied that plea, and when LTTS attempted

an interlocutory appeal, the court of appeals dismissed its appeal for lack of

jurisdiction, holding that LTTS is not a governmental unit under section

101.001(3). 288 S.W.3d 31, 38 .

Civil Practice and Remedies Code section 51.014(a)(8) allows immediate

appeal of an order denying or granting a plea to the jurisdiction by a

governmental unit and, in doing so, incorporates by reference section

101.001(3) ’s definition of what constitutes a

governmental unit. Tex. Civ. Prac. &

Rem. Code § 51.014(a )( 8). In construing

section 51.014, it is “the Legislature’s intent that section 51.014 be strictly

construed as a narrow exception to the general rule that only final judgments

and orders are appealable.” Bally Total Fitness Corp. v.

Jackson , 53 S.W.3d 352, 355 (Tex. 2001) (quotation marks omitted).

LTTS asserts that it is a “governmental unit” for purposes of section

51.014(a )( 8) under two provisions found in section

101.001(3). Specifically, LTTS argues that it is a governmental unit both as a

“school district” under section 101.001(3 )( B), and also

as “any other institution, agency, or organ of government” as provided by

section 101.001(3)(D). 1

II. Privately Run, Open-Enrollment Charter Schools Are Not

Governmental Units

A. “Any Other Institution, Agency, or Organ of Government” Under

Section 101.001(3 )( D) and “School District” Under

Section 101.001(3)(B)

The Court holds that LTTS is a governmental unit under section

101.001(3 )( D), concluding it qualifies as “any other

institution, agency, or organ of government the status and authority of which

are derived from the Constitution of Texas or from laws passed by the

legislature under the constitution.” Tex. Civ. Prac. & Rem. Code

§ 101.001(3 )( D). The first part of that

definition, “any other institution, agency, or organ of government,” appears

quite broad. But that apparent breadth is circumscribed by the language that

follows: “status and authority of which are derived from the Constitution of

Texas or from laws passed by the legislature under the constitution.” The

linchpin of section 101.001(3 )( D) is the word “derive.”

“Derive” means “to receive or obtain from a source or origin.” Random House Dictionary of

the English Language 536 (2d ed. 1987). The plain language of

section 101.001(3 )( D) thus covers only two classes of

governmental entities: those whose status and authority comes directly from our

Constitution, and those whose status and authority is received or obtained by a

legislative enactment. See Tex.

Civ. Prac. & Rem. Code § 101.001(3 )( D).

Unquestionably, LTTS does not derive

its status from the Constitution. We therefore examine whether it falls within

the other class of entities covered by section 101.001(3 )( D)—those whose status and authority is conferred by a

legislative enactment. LTTS does not fall within that class either, because it

does not obtain or receive status or authority from any statute or other

enactment. Rather, its status is derived from a charter granted by the State

Board of Education. See Tex.

Educ. Code §§ 12.101,

.113. If LTTS’s charter is revoked, or if the commissioner

of education denies its renewal, see id. §§ 12.115, .116, LTTS will

cease to have any kind of governmental status and will simply be a private,

nonprofit corporation. See id. § 12.1161(a) (“[I]f the commissioner

revokes or denies the renewal of a charter of an open-enrollment charter school . . . the school may not: (1)

continue to operate under this subchapter; or (2) receive state funds under this

subchapter.”). In point of fact, although the Education Code authorizes the

State Board of Education to grant charters, it does not itself grant them to any

particular entities. Therefore, LTTS does not derive its status or authority

from any legislative enactment.

LTTS also asserts that it is a governmental unit under section

101.001(3 )( B) as a “political subdivision,

specifically, a school district.” The Court does not reach that question. I

would hold that the plain meaning of “school district” does not cover a

privately operated, open-enrollment charter school. A school district is a

“political subdivision,” Tex.

Civ. Prac. & Rem. Code § 101.001(3 )( B),

exercising “jurisdiction over a portion of the State,” Guar. Petroleum Corp.

v. Armstrong , 609 S.W.2d 529, 531 (Tex. 1980). Rather than exercising

jurisdiction, an open-enrollment charter school “provide[s] instruction to

students at one or more” locations, and “does not have authority to impose

taxes.” Tex. Educ.

Code § 12.102(1),

(4). Furthermore, the Legislature, far from defining

charter schools as school districts, generally goes to great lengths in the

Education Code to list each separately, a clear indication that a charter school

is not equivalent to a school district. See, e.g. ,

id. § 7.009.

Rather than employing this strict textual analysis to determine whether

the requirements of section 101.001(3) are met, the Court largely ignores the

statutory text and instead meanders through a wide-ranging consideration of

Chapter 12 of the Education Code. Seeking to buttress its conclusion, the Court

cites sections of the Education Code that generally describe how open-enrollment

charter schools operate, but are irrelevant to the narrow procedural issue

before us. The Court thus mistakenly focuses only on the inclusive, general part

of the definition “institution, agency, or organ of government,” while

disregarding the limiting language “status and authority of which are derived . . . from laws passed by the

legislature under the constitution.” Tex. Civ. Prac. & Rem. Code

§ 101.001(3 )( D), thereby rendering meaningless the

limiting language in that section and thwarting the Legislature’s intent. The

Court is also oblivious to the rule that interlocutory appeals are disfavored,

and that section 51.014 is to be strictly construed accordingly. See Bally

Total Fitness , 53 S.W.3d at

355 .

The Court makes a bold but brief effort to identify legislative

enactments that confer status and authority on LTTS under section 101.001(3 )( D). It particularly cites sections 12.104 and 12.105 of the

Education Code, asserting that charter schools derive authority and status

respectively from those enactments. But section 12.104 does not confer authority

on LTTS, or on any other charter school. See Tex. Educ. Code § 12.104. It merely

provides that charter schools have the same powers as public schools under Title

2 of the Education Code. See id. Whether a particular entity like LTTS

is an open-enrollment charter school, and is thus able to avail itself of those powers, is entirely dependent on the grant of

a charter from the State Board of Education. See id. §§ 12.101, .113. Section 12.105 likewise does not confer

status on LTTS, or any other charter school, but instead provides that

open-enrollment charter schools are part of the public school system. See id.

§ 12.105. As with section 12.104, whether any particular entity is an

open-enrollment charter school—and hence part of the public school

system—depends on the grant of a charter from the State Board of

Education.

The Court also cites Education Code section 12.1053 as conferring

governmental status on open-enrollment charter schools. But, in addition to the

fact that it does not confer status for the reasons discussed above, an

examination of section 12.1053 demonstrates a clear intent to only apply very

specific definitions and provisions from the Government and Local Government

Codes to charter schools. It defines open-enrollment charter schools as (1)

“governmental entit [ ies ]”

under subchapter D, Government Code Chapter 2252 (providing that real property

is held in trust); (2) “governmental entit [ ies ]” under subchapter B, Local Government Code Chapter 271

(addressing competitive bidding on certain public works contracts); (3)

“political subdivision[s]” under subchapter A, Government Code Chapter 2254

(governing professional services contracts); and (4) “local government” under

Government Code sections 2256.009 to 2256.016 (regulating authorized

investments). Tex. Educ. Code

§ 12.1053. None of those four definitions is the same

as “‘governmental unit’ under Civil Practice and Remedies Code section

101.001(3),” which is, after all, the inquiry here.

Finally, the Court notes that “[s] everal

statutes discuss the authority that open-enrollment charter schools may exercise

under their charters.” __ S.W.3d __ (emphasis added). But this merely

underscores the flaw in the Court’s reasoning: open-enrollment charter schools

derive status and authority under the charters granted to them by the

State Board of Education, not from any legislative enactment.

This is not to say that the Legislature could never allow a privately

run, open-enrollment charter school like LTTS to take an interlocutory appeal.

And, contrary to the Court’s understanding, I am not suggesting that only a

legislative enactment specifically naming each charter school would suffice, or

that the Legislature must approve each charter application. __

S.W.3d __. Rather, had the Legislature chosen to do so, it could readily

have provided for interlocutory appeals by open-enrollment charter schools as

a class . For example, it could have amended the interlocutory appeal

statute. Cf. Tex. Civ. Prac.

& Rem. Code § 51.014(a)(6) (authorizing interlocutory appeal

from an order denying a motion for summary judgment “based in whole or in part

upon a claim against or defense by a member of the electronic or print media”).

But, the Legislature did not so choose. Cf. Entergy Gulf States, Inc. v.

Summers , 282 S.W.3d 433, 463 (Tex. 2009) (Willett, J., concurring) (citation

omitted) (“[T]he ‘surest guide’ to what lawmakers intended is what lawmakers

enacted.”). Nor is this to say that an interlocutory appeal would always be

improper for a publicly run, open-enrollment charter school—such a school

would likely be a governmental unit independent of its charter. 2 But LTTS is not a publicly run school,

and the Legislature simply has not granted privately run, open-enrollment

charter schools a right to interlocutory appeal. The Court errs in granting them

that right today.

B. Comparison to Public Universities and Junior College

Districts

The

Legislature’s treatment of public universities and junior colleges under section

101.001(3) illustrates the actual manner in which the Legislature designates

entities as governmental units under that section, and further highlights the

flaw in the Court’s reasoning. Specifically, junior college districts are

governmental units under section 101.001(3 )( B) because

they are listed in that subsection, whereas public universities are governmental

units under section 101.001(3)(D) because their authority and status is

conferred by legislative enactments.

Civil Practice and Remedies Code section 101.001(3 )( B) includes “junior college district[s],” as well as school

districts, in its enumeration of entities that are governmental units. Tex. Civ. Prac. & Rem. Code

§ 101.001(3 )( B). By contrast, public universities

are treated differently from both junior colleges and charter schools. Although,

like charter schools, they are not listed anywhere in section 101.001(3), public

universities nevertheless satisfy the precise standards articulated by section

101.001(3 )( D), which requires that an entity’s

governmental status be “derived from . . . laws passed by the

legislature .” Id. § 101.001(3 )( D)

(emphasis added). The extensive provisions of Title III of the Education Code,

entitled “Higher Education,” confer status and authority on the various public

universities of this state. See, e.g. , Tex. Educ. Code § 67.02 (“The

University of Texas at Austin is a coeducational institution of higher education

within The University of Texas System.”); id. §§ 109.001, .01

(establishing the Texas Tech University System and providing that Texas Tech

University “is a coeducational institution of higher education located in the

city of Lubbock”).

Unlike public universities, specific charter schools are not mentioned in

the Education Code, nor any other statute, and they therefore do not derive

status as governmental units from legislation, as section 101.001(3 )( D) requires. Rather, like junior colleges, the Legislature

has provided administrative procedures for their creation, but has not actually

conferred status on them itself. See id. §§ 130.011–.013 (providing

for establishment of junior college districts by joint action of the

coordinating board, commissioner of higher education, and the independent school

district or city that wishes to establish a junior college district); id.

§§ 12.101, .113 (authorizing the State Board of

Education to grant charters). 3 But, unlike junior colleges, charter

schools are not among the entities enumerated in Civil Practice and

Remedies Code section 101.001(3). The Court largely ignores the rest of section

101.001(3) in its analysis, focusing almost entirely on subsection (D). But, in

construing a statute, “[w]e determine legislative

intent from the entire act and not just isolated portions.” 20801, Inc. v. Parker , 249 S.W.3d 392, 396 (Tex.

2008).

Accordingly, I would conclude that privately run, open-enrollment charter

schools such as LTTS do not fall within the plain language of section

101.001(3 )( D), because they gain and lose their status

and authority through agency actions, not by legislative enactments. I would

also conclude that they are not “school districts,” and therefore are not

governmental units under section 101.001(3 )( B). Thus, I

would hold that LTTS is not entitled to an interlocutory appeal under section

51.014(a )( 8).

III. The

Court Effectively Answers a Substantive Question Not Before Us

The Court’s reasoning further effectively answers a question not before

us today—that is, whether privately run, open-enrollment charter schools like

LTTS possess governmental immunity from suit. Although the Court professes to

reserve judgment on this issue, the reasoning of the Court’s opinion appears to

be animated by a concern raised by the Solicitor General. See __ S.W.3d

__ n.44. ­ The Solicitor General asserts that it would be “illogical”

to hold that open-enrollment charter schools are not governmental units under

section 101.001(3)(D), because if they are not, the waiver in the Tort Claims

Act allegedly would not apply. In other words, charter schools would be

governmental entities that enjoy immunity from suit in the first instance, but

they would not be “governmental units” under section 101.001(3), for which

certain immunity is waived by the Tort Claims Act. The Solicitor General further

reasons that such a result would leave charter schools entirely immune from tort

claims, whereas school districts’ immunity is waived by the

Act.

The Court endorses this reasoning. __ S.W.3d __

n.44. ( ­ “[A] ssuming arguendo the Legislature can grant immunity from liability,

it would seem odd for lawmakers to imbue open-enrollment charter schools with

greater tort immunity than cities, counties, school districts, and other purely

governmental entities.”). But the Solicitor General’s argument fails for a

multitude of reasons. First, public school districts themselves possess near

complete immunity under the Tort Claims Act , 4 thus proving the argument that the

Legislature could not have intended to treat public schools and privately run,

open-enrollment charter schools disparately to be a non-sequitur. There is no

parade of horribles that would result from holding

that private charter schools are not governmental units under section

101.001(3), even if this meant they possessed complete immunity. Only a narrow

group of tort actions would be affected.

Second, as discussed above, the Court avoids the question of whether an

open-enrollment charter school is a “school district” today, but we will

inevitably face this issue in the future. If open-enrollment charter schools do

possess immunity from suit, as the Court’s opinion suggests, it follows that the

only way immunity would be waived for contract claims such as those brought here

would be through the contract-claims waiver in Local Government Code section

271.152. And that waiver would most likely apply to privately run,

open-enrollment charter schools only if such schools are “school districts,”

which, as previously explained, they are not. This is because the definition of

“local governmental entity” to which that waiver applies contains no catch-all

provision equivalent to section 101.001(3 )( D).

See Tex. Loc.

Gov’t Code

§ 271.151(3). Rather, it is limited to a list of

entities nearly identical to those found in section 101.001(3 )( B). Both definitions cover the following entities: (1) city

or municipality, (2) school district or junior college district, and (3) “levee

improvement district, drainage district, irrigation district, water improvement

district, water control and improvement district, water control and preservation

district, freshwater supply district, navigation district, conservation and

reclamation district, soil conservation district, communication district, public

health district, and river authority.” Compare id. § 271.151(3 )( A)–(C), with Tex. Civ. Prac. & Rem. Code

§ 101.001(3 )( B). The only substantive difference

between the two is that section 271.151(3) excludes counties, while section

101.001(3 )( B) includes them. Compare Tex. Loc. Gov’t Code § 271.151(3), with Tex.

Civ. Prac. & Rem. Code § 101.001(3 )( B).

Section 271.152’s waiver is therefore limited to the same governmental units

that fall under section 101.001(3 )( B), with the

exception of counties. And because open-enrollment charter schools are not

included in section 271.152’s list of entities, they also would not fall within

its waiver of immunity. 5

Third, given that an open-enrollment charter school’s very existence as a

public school is dependent on an agency’s grant of a charter, and is subject to

revocation at the whim of an agency, it is unclear what

the effect of a charter revocation mid-suit would have on the school’s supposed

immunity under the Court’s reasoning. Would the school retain immunity, even

though it was no longer a governmental unit? Or would the school immediately

lose immunity, even though sued for events occurring while a charter school? And

what if a private nonprofit corporation operating a charter

school were sued on a basis removed from its provision of education

services? Would that private corporation enjoy immunity simply because it

operated a charter school? These sorts of difficult questions deserve the

opportunity for consideration and debate in our adversarial system, and further

illustrate the infirmity of the Court’s implicit reaching of the substantive

issue not before us.

Finally, such reasoning simply begs the question of whether privately

run, open-enrollment charter schools are immune at all.

It is far from clear that the Legislature can confer immunity upon private

entities like LTTS. Sovereign immunity (and by extension, governmental immunity,

which is derived from it) is a common-law doctrine of the courts. See Tooke

v. City of Mexia , 197 S.W.3d

325, 331 (Tex. 2006). Generally, the Legislature’s role is limited to

waiving immunity, while recognition of immunity’s existence is left to the

courts. See id. at 331–32 (noting that

the Court has long upheld the rule of sovereign immunity, while deferring to the

Legislature to waive it). Indeed, after a review of the doctrine’s foundations,

we concluded that “it remains the judiciary’s responsibility to define the

boundaries of the . . . doctrine

and to determine under what circumstances sovereign immunity exists in the

first instance .” Reata Constr. Co. v.

City of Dallas , 197 S.W.3d 371, 375 (Tex. 2006) (emphasis added); see

also City of Galveston v. State , 217 S.W.3d 466, 475 (Tex. 2007) (Willett,

J., dissenting) (“The Legislature’s focus is critical but confined; its role is

limited to waiving pre-existing common-law immunity.”). We further noted

that “[s] overeign immunity is a common-law doctrine

that initially developed without any legislative or constitutional enactment.”

Reata , 197 S.W.3d at

374 . In part for policy reasons, we defer to the Legislature to

waive such immunity as has been recognized by the courts. See id.

at 375 (“We have generally deferred to the

Legislature to waive immunity because the Legislature is better suited to

address the conflicting policy issues . . . .”). Our

sovereign immunity jurisprudence therefore suggests, at least as a general

matter, that courts create or recognize sovereign immunity, while the

Legislature waives it. 6

It is true that there are some forms of statutory immunity.

See, e.g. , Franka v. Velasquez ,

332 S.W.3d 367 , 371 n.9 (Tex. 2011) (holding that section 101.106 of the Civil

Practice and Remedies Code confers immunity in some instances to employees of

governmental units); Entergy Gulf States , 282 S.W.3d at 436 (noting that

general contractors have limited immunity as “statutory employers” under Texas

Labor Code section 408.001(a)). But the precise contours of the Legislature’s

power to grant immunity by statute remain unclear—it is no doubt limited by the

Open Courts and Due Course of Law provisions of our Constitution. It may be

constitutionally significant that both of the above examples involve special

circumstances that limit the breadth of the immunity in question. In the first,

the government is simply extending its own immunity to its employees (in a

manner largely coterminous with governmental immunity for acts of government

employees within their official capacity). See Franka , 332 S.W.3d at 371 n.9 .

In the second, a limited form of immunity is extended in conjunction with a

comprehensive workers’ compensation scheme, one designed to provide an

alternative form of compensation to the traditional tort remedies in some cases.

That immunity, unlike sovereign immunity, does not entirely preclude a

plaintiff’s recovery, it merely limits recovery to the

statutory scheme. See HCBeck ,

Ltd. v. Rice , 284 S.W.3d 349, 350 (Tex. 2009). It is also an

affirmative defense, not a bar to jurisdiction. See id. Furthermore,

there is a question as to whether the Legislature can delegate to an agency the

power to confer immunity upon separate private entities.

In sum, it is unsettled whether the Legislature has the power to confer

immunity from suit on privately operated, open-enrollment charter schools via

the statutory scheme in question. But, leaving aside that thorny issue, the only

legislative act that addresses immunity for open-enrollment charter schools

narrowly provides that they are “immune from liability to the same extent

as a school district.” Tex. Educ.

Code § 12.1056 (emphasis added). Immunity from liability is not the

same as immunity from suit. Tooke , 197 S.W.3d at

332 . The former “bars enforcement of a judgment against a governmental

entity,” id. , while only the latter is the basis for a plea to the

jurisdiction, see id. ; Tex. Dep’t of Parks & Wildlife v.

Miranda , 133 S.W.3d 217 , 225–26 (Tex. 2004). The plain meaning of section

12.1056 therefore gives no indication that LTTS is immune from suit, independent

of whether it is immune from liability, and as such provides no basis for a plea

to the jurisdiction. In other words, regardless of whether the Legislature has

the power to confer immunity from suit in this case, section 12.1056 does not

suffice to do so, making it anything but a foregone conclusion that privately

operated, open-enrollment charter schools have immunity from suit.

Despite these unsettled questions, the Court’s reasoning will strongly

imply to our state’s lower courts that we have already determined that privately

run, open-enrollment charter schools are immune from suit. Indeed, nearly

all of the Court’s analysis would be more properly addressed to the merits of

LTTS’s assertion of immunity, rather than the narrow procedural question that is

actually before us. I fear that the Court’s approach will effectively deprive

litigants of their day in court to properly contest whether privately run,

open-enrollment charter schools in fact have immunity from suit. We should not

predetermine this important decision now, but should wait until it is squarely

presented to this Court, and we should decide it explicitly, not by

implication.

IV. Conclusion

Because (1) the plain meaning of Civil Practice and Remedies Code section

101.001(3) does not cover a privately run, open-enrollment charter school like

LTTS, and (2) the Court has effectively resolved the underlying substance of

whether such schools enjoy immunity from suit, rather than the procedural issue

properly before us, I respectfully dissent, and would affirm the court of

appeals’ holding that it lacked jurisdiction over this interlocutory

appeal.

______________________________

Eva M. Guzman

Justice

OPINION DELIVERED : June 17, 2011

1 As

relevant here, section 101.001(3) defines a “governmental unit” as:

(B) a

political subdivision of this state, including any city, county, school

district, junior college district, levee improvement district, drainage

district, irrigation district, water improvement district, water control and

improvement district, water control and preservation district, freshwater supply

district, navigation district, conservation and reclamation district, soil

conservation district, communication district, public health district, and river

authority;

. . . .

(D) any other institution, agency, or organ of government the

status and authority of which are derived from the Constitution of Texas or from

laws passed by the legislature under the constitution.

Tex. Civ. Prac. & Rem. Code

§ 101.001(3 )( B), (D).

2

Chapter 12 of the Education Code provides that charters can be granted not only

to private entities, but also to public institutions of higher learning, and

other governmental entities. Tex. Educ.

Code § 12.101(a )( 1), (4).

3 Junior

college districts are by no means unique in this respect. Similarly, for

example, water improvement districts derive their authority from local

governments, not the Legislature, and, like junior colleges—but unlike charter

schools—they are listed in section 101.001(3). See Tex. Water Code §§ 55.021–.053 (establishing rules and

procedures by which local governments may create water improvement districts);

Tex. Civ. Prac. & Rem. Code § 101.001(3 )( B) (defining governmental unit as “a political subdivision

of this state, including any . . . water improvement

district”).

4

School districts as a practical matter are almost entirely immune—the Tort

Claims Act excludes them from its waiver “[e] xcept as to motor vehicles.” Tex. Civ. Prac. & Rem. Code

§ 101.051; see also Hopkins v. Spring Indep .

Sch. Dist. , 736 S.W.2d 617, 619 (Tex. 1987) (holding school district immune

from suit for injuries suffered by a student aboard a school bus, because the

injuries did not result from the “operation” or “use” of the bus).

5

Notably, although Education Code section 12.1053 makes subchapter B

(covering competitive bidding on certain public works contracts) of Local

Government Code Chapter 271 applicable to open-enrollment charter schools, it

does not apply subchapter I (which includes the waiver provisions found in

sections 271.151 and 271.152) to them. See Tex. Educ. Code § 12.1053.

6

Significantly, we have also reserved the possibility that, having created

sovereign immunity, the judiciary “may modify or abrogate such immunity by

modifying the common law,” Reata , 197 S.W.3d at

375 , though we have cautioned that courts should not lightly set aside immunity,

once recognized, as doing so “could become a ruse for avoiding the Legislature,”

City of Galveston , 217 S.W.3d at 471 .