The opinion
IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
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No. 05-0340
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Ben Bolt-Palito Blanco
Consolidated Independent School District, Petitioner,
v.
Texas Political Subdivisions
Property/Casualty Joint Self-Insurance Fund, Respondent
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On Petition for Review from the
Court of Appeals for the Fourth District of
Texas
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Argued March 22,
2006
Justice Willett , joined by J ustice Hecht , dissenting in part.
I agree with
most of the Court’s opinion, but respectfully dissent from Part II(D) because I
do not believe that section 271.152 of the Local Government Code clearly and
unambiguously waives the Fund’s governmental immunity.
I agree with
the Court that the Fund is a discrete governmental unit performing a
governmental function, and therefore possesses immunity from suit unless the
Legislature has waived it. I also agree that the Fund is a “local governmental
entity” under sections 271.151(3) and 271.152. However, I part company on
whether the Legislature in 2005 clearly waived the Fund’s immunity for two
principal reasons: (1) deciding whether a contract is “subject to this
subchapter” requires this Court to actually see and read the contract, which
exists nowhere in the record; and (2) even accepting Ben Bolt’s description of
the contract, it falls outside the restrictive language of the statute’s
immunity waiver (or at minimum does not “clearly and unambiguously” fall within
it).
It is
axiomatic that “a waiver of immunity must be clear and unambiguous,” Tooke v.
City of Mexia , 197 S.W.3d 325, 333 (Tex. 2006), see also Tex. Gov’t Code § 311.034 (immunity
waivers must be “effected by clear and unambiguous language”), and any ambiguity
must be resolved in favor of retaining immunity, see Wichita Falls State
Hosp. v. Taylor , 106 S.W.3d 692, 697 (Tex. 2003). As the Court’s opinion
explains, the Legislature has waived immunity in certain contract actions
against local governments. A contract subject to this limited immunity waiver is
“a written contract stating the essential terms of the agreement for providing
goods or services to the local governmental entity . . . .” Tex. Loc. Gov’t Code § 271.151(2)
(emphasis added). As the parties describe the contract, however, this dispute
does not concern a contract whereby Ben Bolt provided goods or services to the
Fund, the entity claiming governmental immunity. Quite the opposite: the Fund
provided goods or services to Ben Bolt.
Rightly or
wrongly, the Legislature chose the preposition “to”—not the opposite term
“from”—and this is a grammatical distinction with a difference. As any fax cover
sheet (or elementary school valentine card) makes clear, the words have
diametrically opposite definitions and convey diametrically opposite meanings;
generally, the preposition “to” means “in a direction toward” while “from” means
“in a direction away.” The core commodity covered by the agreement, casualty
insurance, flows from the Fund, not to the Fund as the statute
requires.
Certainly,
reasonable people can argue that construing the statute as not providing a
waiver of immunity impairs the purpose underlying the overall scheme, but we
interpret statutory text as we find it. The clearest manifestation of what
lawmakers intended is what lawmakers enacted, and it is not this Court’s role to
embroider or spruce up statutory language, particularly when such embellishment
requires us to read a term as really meaning the polar opposite. This is not an
overly technical interpretation but one that recognizes the special deference
owed legislative policy choices in the context of contract claims against the
government, even if critics find those choices odd, unfair, or imprudent.
Moreover, it is an interpretation that acknowledges the settled principle that
immunity waivers must be unequivocal.
The Court
relies principally on two arguments to scale the “to/from” hurdle. First, it
avers that “the relationship between the Fund and its members differs from an
ordinary consumer/seller relationship” and that because members like Ben Bolt
“elect a governing board, and a board subcommittee resolves claims disputes,”
the members do in fact provide services to the Fund. ___ S.W.3d ___, ___. The
Court insists that this suffices to waive the Fund’s immunity, but in reaching
to satisfy the definitional requirement of section 271.151(2), the Court
disregards the actual waiver provision of section 271.152. This section waives
immunity from suit “for the purpose of adjudicating a claim for breach of the
contract,” Tex. Local Gov’t Code
§ 271.152, and that contract must be one of providing goods or services
to a local government entity, id. § 271.151(2). Ben Bolt’s ancillary
activities may well be found in the Fund’s by-laws, as the Fund’s counsel
surmised at oral argument, but neither Ben Bolt nor the Court cites any record
evidence that shows these activities are prescribed by the insurance contract
that Ben Bolt alleges was breached. Indeed, the sparse record in this case
excludes the Interlocal Cooperation Contract, the Fund’s by-laws and any other
pertinent documents that might describe in detail the parties’ contractual
relationship. This is a breach of contract case, and when the statute waiving
immunity requires that the contract specify “the essential terms of the
agreement for providing goods or services to the local governmental
entity,” id. , it seems reasonable for the party alleging breach of that
contract to produce it, not just describe it, particularly when its terms
dictate whether immunity survives.
In any event,
even if the described board- and claims-related activities were detailed in the
insurance contract itself, these seem to be little more than oversight-related
activities to help set up and maintain the Fund, and the Legislature has
expressly preserved immunity for such functions: “[t]he establishment and
maintenance of a self-insurance program by a governmental unit is not a waiver
of immunity . . . .” Tex. Gov’t Code
§ 2259.002; see also Tex.
Gov’t Code §§ 2259.001(1)–(2) (defining “governmental unit” to include “a
combination of political subdivisions, including a combination created under
Chapter 791," the Interlocal Cooperation Act). Given these gaps and the
governing statutory framework, it is difficult to conclude that section 271.152
has clearly and unambiguously waived the Fund’s immunity from suit.
Second, the
Court cites a House bill analysis to bolster its view that “to” should also be
read to mean “from,” and concludes, “There is no indication that the Legislature
intended to exclude self-insurance fund agreements from enforcement.” ___ S.W.3d
at ___. There is such indication: the literal text that our elected
representatives and senators enacted. As we recently cautioned in
Sheshunoff , if the statutory text is plain, “we must take the Legislature
at its word and not rummage around in legislative minutiae.” Alex Sheshunoff
Mgmt. Servs. v. Johnson , ___ S.W.3d ___, ___n.4 (Tex. 2006). In any event,
the bill analysis quoted by the Court offers such indication, too, in qualifying
language found in the very same sentence; this language, omitted by the Court,
is shown here in italics: “all local governmental entities that have been given
or are given the statutory authority to enter into contracts shall not be immune
from suits arising from those contracts, subject to the limitations set forth
in C.S.H.B. 2039. ” [1] House Comm. on Civil Practices, Bill
Analysis , Tex. H.B. 2039, 79th Leg., R.S. (2005) (emphasis added). Even
if the Legislature intended to waive broadly a local government’s immunity on
contracts, it expressly recognized that terms and conditions within subchapter I
itself would exclude some contracts from this waiver. One such limitation is
section 271.151(2): the suit must be on a contract to provide goods or services
to a local governmental entity.
At minimum,
the Legislature’s selection of “to” instead of the directionally opposite “from”
renders the purported waiver less than conclusive and a flimsy basis for holding
that the Legislature has waived immunity beyond all doubt. More fundamentally,
it is difficult to conclude with unalloyed certainty that a contract is “subject
to this subchapter” and thus an undeniable waiver of immunity when the contract
itself appears nowhere in the record.
In sum, the
statute’s immunity language does not evince the Legislature’s unequivocal intent
to cover this specific contract. Accordingly, since we must resolve
uncertainties over legislative consent in favor of immunity, I would hold that
the Legislature has not abrogated the Fund’s immunity from suit.
I find none
of Ben Bolt’s other arguments for disregarding the Fund’s immunity persuasive
and would affirm the judgment of the court of appeals.
_______________________________________
Don R.
Willett
Justice
Opinion delivered: December 29,
2006
[1] These dueling snippets of legislative history
illustrate the peril of placing undue reliance on secondary materials. Anyone
looking for a preferred interpretation can usually find a ready ally lurking in
the legislative record, even if the statute’s literal text points the opposite
direction. I do not reject out of hand the principled use of legislative history
to unearth reliable guidance (unless the text’s plain language is unequivocal),
Sheshunoff , ___ S.W.3d at ___, but it certainly merits a jurisprudential
grain of salt. The enacted, voted-on text is what constitutes the law. We may
not know the origin of a phrase tucked into a bill analysis, but we do know it
is unwise to consider such materials a watertight index of the collective wishes
of 181 lawmakers.