The opinion
IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
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No. 03-0878
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Judy Tooke and Everett Tooke
d/b/a Tooke and Sons and d/b/a Nature’s Way Organic Landscaping,
Petitioners
v.
The City of Mexia,
Respondent
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On Petition for Review from the
Court of Appeals for the Tenth District of
Texas
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Argued April 21,
2004
Justice Johnson , concurring in part and
dissenting in part.
I agree with
the Court that the plain and common meaning of the phrase “plead and be
impleaded” does not reflect clear and unambiguous legislative intent to waive
governmental immunity from suit, and that it does not reflect such intent in the
context of Tex. Loc. Gov’t Code §
51.075. ___ S.W.3d ___. I also agree that the meaning of statutory language that
an entity may “sue and be sued” depends on its context. ___ S.W.3d ___. But, I
agree with Justice O’Neill that we should not overrule Missouri Pacific
Railroad Co. v. Brownsville Navigation District , 453 S.W.2d 812 (Tex. 1970).
___ S.W.3d ___ (O’Neill, J., dissenting).
In
Missouri Pacific we considered whether the following language waived
immunity from suit:
All
navigation districts established under this Act may, by and through the
navigation and canal commissioners, sue and be sued in all courts of this State
in the name of such navigation district . . . .
453 S.W.2d at
813 (citation omitted). We acknowledged that there may be other language by
which legislative intent to give consent to suit against a governmental entity
might be more clearly expressed. Id . Nevertheless, we said that the
language we were considering “is quite plain and gives general consent for [the]
District to be sued” in the same manner as other defendants. Id . Our
analysis was based on the plain language of the statute. We needed go no
further, for “[w]hen a statute is clear and unambiguous, courts need not resort
to rules of construction or extrinsic aids to construe it, but should give the
statute its common meaning. The Legislature’s intent is determined from the
plain and common meaning of the words used.” See St. Luke’s Episcopal Hosp.
v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997) (citations omitted).
As the Court
notes in this case, some statutes use “sue and be sued” language, yet
specifically provide that governmental immunity is not waived. See Tex. Educ. Code § 111.33 (providing
that the Board of Regents of the University of Houston may “sue and be sued,”
but that “[n]othing in this section shall be construed as granting legislative
consent for suits against the board . . . .”) ; see also Tex. Health & Safety Code §
403.006, art. 3, sec. 3.03. Legislative intent to preserve immunity by such
plain language is clear. But, clarity of language preserving immunity does not
diminish the clarity of language such as we interpreted in Missouri
Pacific , which waives immunity.
I would hold,
in accordance with Missouri Pacific , that statutory language that a
governmental entity may sue and be sued is clear and unambiguous consent for
suit and that such language waives governmental immunity from suit unless the
statute also contains language retaining immunity or the context otherwise
demonstrates legislative intent to modify the plain meaning of the “sue and be
sued” language.
I concur in
the Court’s judgment. I dissent from that part of the Court’s opinion overruling
Missouri Pacific .
________________________________________
Phil
Johnson
Justice
OPINION DELIVERED: June
30, 2006