Service Employment Redevelopment v. Fort Worth Independent School District

COURT OF

APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-03-116-CV

SERVICE

EMPLOYMENT APPELLANT

REDEVELOPMENT

V.

FORT

WORTH INDEPENDENT APPELLEE

SCHOOL

DISTRICT

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FROM

THE 17TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. INTRODUCTION

In

this appeal, we must determine whether the trial court properly dismissed this

breach of contract case for want of subject matter jurisdiction. Because

we determine that appellee Fort Worth Independent School District (FWISD) is not

immune from suit for breach of contract, that appellant Service Employment

Redevelopment has standing to bring a breach of contract claim against FWISD,

and that appellant did not fail to exhaust administrative remedies, we reverse

and remand.

II. BACKGROUND FACTS

Appellant

entered into a contract with FWISD under which appellant was to provide an

alternative education program for FWISD students. The contract was initially

effective for the 1995-96 school year and was dated December 12, 1995. Payment

under the contract was to be made in accordance with a formula set forth in the

contract. The contract required appellant to comply with applicable laws and

with any rules of the Texas Education Agency or the FWISD Board of Education

determined to be applicable. The contract further provided that “[i]f any

provision . . . is declared invalid or unenforceable, such provision shall be

deemed modified to the extent necessary and possible to render it valid and

enforceable” and that “[a]ny unlawful provision shall be deemed stricken

from the agreement and shall have no effect.”

In

December 1999, appellant sued FWISD alleging that the school district breached

the contract by failing to compensate appellant in the amount required under

education code section 37.008(g) for the 1995-96 school year. 1

See Tex. Educ. Code Ann. §

37.008(g) (Vernon Supp. 2004-05). Section 37.008(g) requires school districts to

“allocate to a disciplinary alternative education program the same expenditure

per student . . . that would be allocated to the student’s school if the

student were attending the student’s regularly assigned education program.” Id .

According to appellant, the parties intended to incorporate section 37.008(g)

into the contract but did not include it as a result of either mutual mistake or

fraud by FWISD; thus, the formula FWISD used to calculate the amount to pay

appellant was less than the amount the parties intended under section 37.008(g).

Because appellant alleged that the contract did not comply with section

37.008(g), it asked the trial court to strike the allegedly unlawful payment

formula and modify the contract’s payment provision to conform with section

37.008(g).

III. DISCUSSION

FWISD

filed a motion to dismiss for want of subject matter jurisdiction in the trial

court alleging that appellant had no private right of action under education

code section 37.008, had no standing to sue under education code section 37.008,

and had not exhausted its administrative remedies. The trial court granted

FWISD’s motion to dismiss for want of subject matter jurisdiction without

stating the specific grounds. On appeal, appellant challenges the trial

court’s dismissal of the case for lack of subject matter jurisdiction on all

possible grounds. In five issues, appellant contends that the trial court

reversibly erred in dismissing the case for lack of subject matter jurisdiction

on the following grounds: FWISD is immune from suit, appellant has no private

right of action under education code 37.008(g), appellant lacks standing, and

appellant failed to exhaust administrative remedies.

An

appellant must attack all independent bases or grounds that fully support a

complained-of ruling or judgment. Britton v. Tex. Dep’t of Criminal Justice ,

95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see, e.g. ,

Harris v. Gen. Motors Corp. , 924 S.W.2d 187, 188 (Tex. App.—San Antonio

1996, writ denied). If an appellant does not, then we must affirm the ruling or

judgment. Britton , 95 S.W.3d at 681 . This rule is based on the premise

that an appellate court normally cannot alter an erroneous judgment in favor of

an appellant in a civil case who does not challenge that error on appeal. See

Walling v. Metcalfe , 863 S.W.2d 56, 58 (Tex. 1993). If an independent ground

fully supports the complained-of ruling or judgment, but the appellant assigns

no error to that independent ground, then (1) we must accept the validity of

that unchallenged independent ground, and thus (2) any error in the grounds

challenged on appeal is harmless because the unchallenged independent ground

fully supports the complained-of ruling or judgment. See Walling , 863

S.W.2d at 58-59 ; Britton , 95 S.W.3d at 681 (stating that an appellate

court normally cannot alter an erroneous judgment in favor of an appellant in a

civil case who does not challenge that error on appeal). The same reasoning

applies to a plea to the jurisdiction based on multiple grounds that the trial

court sustains without specifying grounds. Britton , 95 S.W.3d at 682 . On

appeal, appellant has challenged all the possible grounds.

Because

standing is implicit in the concept of subject matter jurisdiction and whether a

trial court has subject matter jurisdiction is an issue determinative of the

authority of a trial court to hear a case, we first address whether appellant

had standing to bring a cause of action in this case.

IV. STANDING AND PRIVATE RIGHT OF ACTION

In

its third and fourth issues, appellant complains that the trial court erred by

dismissing the case for lack of standing and by determining that appellant has

no private right of action under education code 37.008(g). FWISD contests

appellant’s standing by treating appellant’s claim as a damage claim

stemming from a violation of section 37.008(g) rather than a breach of contract

claim on the contract. But in a breach of contract action, a named party to the

contract has standing to sue on that contract. Copeland v. Alsobrook , 3

S.W.3d 598, 608 (Tex. App.—San Antonio 1999, pet. denied). So we must now

determine the nature of appellant’s claim.

Standing

is implicit in the concept of subject matter jurisdiction. Waco ISD v. Gibson ,

22 S.W.3d 849, 850 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd. ,

852 S.W.2d 440, 445-46 (Tex. 1993). Subject matter jurisdiction is essential to

the authority of a court to decide a case. Tex. Ass'n of Bus. , 852 S.W.2d

at 443 . Whether a plaintiff has standing is a question of law. In re

Shockley , 123 S.W.3d 642, 647 (Tex. App.—El Paso 2003, no pet.). We

construe appellant’s pleadings in its favor and, if necessary, review the

entire record to determine whether any evidence supports appellant’s standing

to sue FWISD. Tex. Ass'n of Bus. , 852 S.W.2d at 446 ; In re C.M.V. ,

136 S.W.3d 280, 284-85 (Tex. App.—San Antonio 2004, no pet.).

Appellant

argues that it has standing because its claim against FWISD is a breach of

contract claim; therefore appellant has a private right of action against FWISD.

See Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.—Houston [14th

Dist.] 2002, no pet.). FWISD contends that appellant’s claim is actually

a money damages claim for violation of education code section 37.008(g)

requiring the school district to spend the same amount per student in a

disciplinary alternative education program as it does for students attending

regular education programs. See Tex.

Educ. Code Ann. § 37.008(g). FWISD argues that section 37.008 does not

expressly provide a private right of action and that appellant has no standing

to bring a claim under section 37.008. See id. However, despite the

absence of an express provision for a private right of action, a breach of a

statutory duty normally gives rise to a private right of action on behalf of the

injured group of persons for whose benefit the statute was enacted. Nixon v.

Mr. Property Mgmt. Co. , 690 S.W.2d 546, 549 (Tex. 1985); Securtec, Inc.

v. County of Gregg , 106 S.W.3d 803, 815 (Tex. App.—Texarkana 2003, pet.

denied); Lively v. Carpet Servs., Inc. , 904 S.W.2d 868, 871 (Tex.

App.—Houston [1st Dist.] 1995, writ denied). Accordingly, FWISD also

argues that if the statute provides any right of action, it belongs to the

alternative education students and their parents, not appellant.

Regardless

of whether we agree with FWISD that appellant does not have a private right of

action under section 37.008(g) of the education code, a review of appellant’s

pleadings makes clear that appellant did not bring a statutory claim under

section 37.008(g) against FWISD. Instead, appellant brought a common-law breach

of contract claim based upon the contract as modified by section 37.008(g).

The

provision of the contract entitled “scope” provides that the contract

“shall be deemed to include all agreements . . . and any additional provisions

required by law, whether inserted or not.” By contracting with FWISD,

appellant agreed to provide certain students of the district with an alternative

education program. Under the contract terms, appellant was required to comply

with applicable laws and the rules of the Texas Education Agency or the FWISD

Board of Education.

Appellant’s

pleadings allege that the parties intended that section 37.008(g) be

incorporated into the contract and that due to mutual mistake the parties failed

to incorporate it. In the alternative, appellant alleged in its pleadings that

FWISD intentionally concealed the error and misrepresented to appellant that the

contract included the correct terms. Appellant sought to reform the

contract to incorporate section 37.008(g).

Additionally,

appellant’s pleadings relied upon the provision entitled “Modification” in

arguing that the payment terms of the contract are “unlawful” under section

37.008(g). The contract states in part that “[i]f any provision of this

agreement is declared invalid or unenforceable, such provision shall be deemed

modified to the extent necessary and possible to render it valid and

enforceable.” Additionally, the contract provides that “[a]ny unlawful

provision shall be deemed stricken from the agreement and shall have no

effect.”

In

support of its claims, appellant points to the mandatory modification language

of the contract provisions, mutual mistake, and fraud in arguing that the

parties intended to incorporate education code section 37.008(g) into the

contract. Appellant argues that FWISD breached the contract as modified or

reformed by section 37.008(g). Appellant contends that section 37.008(g)

requires adjustment to any contract that set a payment amount before the school

district’s fiscal year end that did not conform to the dictates of the

section.

A

review of appellant’s pleadings reveals that all of appellant’s claims are

based upon the contract and basic contract law. See Coker v. Coker , 650

S.W.2d 391, 393 (Tex. 1983). And as a party to the contract, appellant has

standing to sue for breach, reformation, or modification of the contract to

incorporate section 37.008(g). We sustain appellant’s third and fourth issues.

V. IMMUNITY FROM SUIT

In

its first and second issues, appellant argues that the trial court erred by

dismissing this case for lack of subject matter jurisdiction because the school

district had not waived immunity from suit. Governmental immunity from

suit defeats a trial court’s subject matter jurisdiction and thus is properly

asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks &

Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004). The trial court

must determine at its earliest opportunity whether it has the constitutional or

statutory authority to decide the case before allowing the litigation to

proceed. Id. at 226 .

We

review the trial court’s ruling on a plea to the jurisdiction based on

immunity from suit under a de novo standard of review. Id. at 225-26,

228 ; Tex. Natural Res. Conserv. Comm'n v. IT-Davy , 74 S.W.3d 849, 855

(Tex. 2002). Whether undisputed evidence of jurisdictional facts establishes a

trial court’s jurisdiction is a question of law. Miranda , 133 S.W.3d at

226 . Here, the parties concede that the facts are undisputed. Thus, we determine

as a matter of law whether the undisputed facts establish jurisdiction.

When

a plea to the jurisdiction challenges the pleadings, we determine if the pleader

has alleged facts that affirmatively demonstrate the court’s jurisdiction to

hear the cause. Id. ; Tex. Ass'n of Bus. , 852 S.W.2d at 446 .

We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent. Miranda , 133 S.W.3d at 226 ; Tex. Ass'n of Bus. ,

852 S.W.2d at 446 .

Appellant

contends that Texas Education Code section 11.151(a) waives the school

district’s immunity from suit for breach of contract. Section 11.151(a)

provides that “[t]he trustees of an independent school district constitute a

body corporate and in the name of the district may acquire and hold real and

personal property, sue and be sued , and receive bequests and donations or

other moneys or funds coming legally into their hands.“ Tex. Educ. Code Ann. § 11.151(a)

(Vernon Supp. 2004-05) (emphasis added). In support of its argument,

appellant cites the Texas Supreme Court’s holding in Missouri Pacific

Railroad Co. v. Brownsville Navigation District , for its interpretation of

the “sue and be sued” language of a 1925 navigation statute. 453 S.W.2d 812

(Tex. 1970). In Missouri Pacific, the court held that the

legislature quite plainly waived a water navigation district’s immunity from

suit in a breach of contract action by providing that the district could “sue

and be sued.” Mo. Pac. , 453 S.W.2d at 813 . Appellant

contends that under that holding, the “sue and be sued” language of the

education code clearly and unambiguously waives the school district’s immunity

from suit. FWISD argues, however, that the “sue and be sued” language

merely refers to the capacity of a school district’s trustees and does not

clearly and unambiguously waive immunity from suit.

Governmental

immunity protects governmental entities from lawsuits for damages absent

legislative consent. See Fed. Sign v. Tex. S. Univ. , 951 S.W.2d

401, 405 (Tex. 1997). The doctrine of governmental immunity encompasses

two distinct concepts: (1) immunity from suit (barring a lawsuit unless the

legislature expressly gives its consent to suit); and (2) immunity from

liability (even if the legislature has expressly given its consent to the suit).

See id. “Immunity from liability is an affirmative defense, while

immunity from suit deprives a court of subject matter jurisdiction.” Miranda ,

133 S.W.3d at 224 .

Although

a governmental entity waives immunity from liability when it contracts with

private citizens, its immunity from suit is not waived by its merely entering

into a contract. See Catalina Dev., Inc. v. County of El Paso , 121

S.W.3d 704, 705 (Tex. 2003); Gen. Servs. Comm'n v. Little-Tex Insulation Co. ,

39 S.W.3d 591, 594 (Tex. 2001). Express legislative consent is required to

show that immunity from a breach of contract suit has been waived. See

Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex.

2002). Consent to suit must be expressed by clear and unambiguous

language. Tex. Gov’t Code Ann.

§ 311.034 (Vernon 2005); Pelzel , 77 S.W.3d at 248 .

Over

time, the doctrine of immunity has been divided into several distinct areas of

law. For example, some statutes and cases deal with immunity as it relates

exclusively to tort claims. See Tex. Civ. Prac. & Rem. Code Ann. §

101.021 (Vernon 1997) (the “Tort Claims Act”); see also Shade v. City of

Dallas, 819 S.W.2d 578, 582 (Tex. App.—Dallas 1991, no writ) (holding

government enjoys sovereign immunity for its negligent acts except to extent the

Tort Claims Act waives that immunity). The supreme court and the

legislature have distinguished the requirements for waiver of immunity in a tort

context from that in a contract context. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. §

101.021; see also Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434,

440-45, 448-49 (Tex. App.—Fort Worth 2001, no pet.) (analyzing waiver of

immunity under Tort Claims Act and breach of contract claims separately and

under different standards).

The

present case involves the issue of waiver of immunity from suit in a breach of

contract context. Accordingly, we are concerned with the cases defining

immunity with respect to claims brought by private citizens against the State or

other governmental entities for breach of contract. 2

See Mo. Pac. , 453 S.W.2d at 813 ; see also Catalina Dev. , 121

S.W.3d at 704-05 ; Tex. A & M Univ.-Kingsville v. Lawson , 87 S.W.3d

518, 521 (Tex. 2002); Pelzel , 77 S.W.3d at 248 ; IT-Davy , 74 S.W.3d

at 854 ; Little-Tex , 39 S.W.3d at 594 ; Fed. Sign , 951 S.W.2d at

405 .

FWISD

argues that the “sue and be sued” language in section 11.151(a) does not

clearly and unambiguously waive immunity from suit because Missouri Pacific

has been implicitly overruled by subsequent supreme court cases dealing with

immunity from suit issues. Additionally, FWISD contends that the language

is not a clear and unambiguous waiver in light of recent court of appeals

decisions holding that such language does not waive immunity. Accordingly,

we briefly review the holding in Missouri Pacific in light of subsequent

immunity case law to determine whether the Texas Supreme Court has implicitly

overruled its holding in Missouri Pacific .

Missouri Pacific Railroad Co. v. Brownsville

Navigation District and Progeny

In

the 1970 Missouri Pacific case, the Texas Supreme Court held that

language in the enabling statute for navigation districts providing that they

can “sue and be sued” waived the navigation district’s immunity from

suit. Mo. Pac. , 453 S.W.2d at 813 . The case arose when a

brakeman for Missouri Pacific Railroad died after being knocked from a train

ladder by a crane that had been left too close to the track. Id. at

812 . In a cross-action for indemnity against the Brownsville Navigation

District, Missouri Pacific claimed that the navigation district had entered into

a contract with Missouri Pacific in which the district agreed not to allow

construction or placement of any obstruction that would violate any law or

regulation respecting clearance or safety margins in the vicinity of railroad

tracks. Id. at 813 . The navigation district filed a plea to

the jurisdiction, which the trial court sustained on the grounds that the

district was a subdivision of the State and that consent to its being sued had

not been given. Id.

The

issue was whether the legislature waived the navigation district’s immunity

from suit in a 1925 act, which provided that “[a]ll 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, and all courts of this State shall take judicial

notice of the establishment of all districts.” Id . (quoting Act

effective February 19, 1925, 39th Leg., R.S., ch. 5, § 46, 1925 Tex. Gen. Laws

7 , 21, repealed by Act of March 29, 1971, 62nd Leg., R.S., ch. 58, §1,

1971 Tex. Gen. Laws 110 , 661) (emphasis added). Specifically, the court

analyzed whether the phrase “sue and be sued” was a waiver of the navigation

district’s immunity from suit. Mo. Pac. , 453 S.W.2d at 813 .

The court concluded unequivocally: “In our opinion [the navigation district

statute] is quite plain and gives general consent for [the] District to

be sued in the courts of Texas in the same manner as other defendants.” Id.

(emphasis added).

The

supreme court’s holding in Missouri Pacific has not been explicitly

overruled. Regardless, FWISD argues that the language refers only to the

representative capacity of the school board trustees to “sue and be sued” in

actions where immunity has been otherwise expressly waived. In arguing

this position, FWISD cites to Satterfield & Pontikes Construction, Inc.

v. Irving Independent School District in support of the proposition that the

holding in Missouri Pacific is not controlling in the present case.

123 S.W.3d 63 (Tex. App.—Dallas 2003, pet. filed).

In

Satterfield , the Dallas Court of Appeals held that the “sue and be

sued” language of section 11.151(a) of the education code does not clearly and

unambiguously waive a school district’s immunity from suit. Satterfield ,

123 S.W.3d at 68 . In its analysis, the Satterfield court reasoned

that the Texas Supreme Court had departed from the logic of Missouri Pacific

in the three decades that followed. Id. at 67 . The Dallas

court relied upon the recent supreme court holding in Travis County v. Pelzel

& Assoc. as support showing that the supreme court has departed from the

logic of Missouri Pacific . Id.; Pelzel , 77 S.W.3d at 249 .

Thus, we will review Pelzel and other post- Missouri Pacific cases

to determine if FWISD’s position is correct.

Travis County v. Pelzel & Assoc.

In

Pelzel , a construction company brought a breach of contract action

against Travis County, seeking payment allegedly due under a contract for

construction of an office building. Pelzel , 77 S.W.3d at

247-48 . Prior to filing suit in the district court, the company presented

its breach of contract claim to the county commissioner’s court pursuant to

Texas Local Government Code section 89.004. Id. at 247 ; see also

Tex. Loc. Gov’t Code Ann. §

89.004 (Vernon Supp. 2004-05). The county refused to pay the claim. Pelzel ,

77 S.W.3d at 247 .

Section

89.004(a), entitled “Presentation of Claim,” provides that “a person may

not file suit on a claim against a county . . . unless the person has presented

the claim to the commissioners court and the commissioners court neglects or

refuses to pay all or part of the claim.” Tex. Loc. Gov’t Code Ann. §

89.004(a). The supreme court held that this statutory language did not

clearly and unambiguously waive immunity from suit. Pelzel , 77

S.W.3d at 249 . The court clarified that the section “states only that a

party must present its claim to the commissioners court, which must neglect,

refuse, or pay all of the claim before the party may file suit.” Id.

Satterfield

and FWISD both rely upon the Pelzel holding to support the proposition

that Missouri Pacific is no longer good law. But FWISD and the Satterfield

court ignore the fact that the Pelzel court cited Missouri Pacific ,

noting that “[o]riginally, the [presentment] statute contained ‘sue and be

sued’ language, arguably showing intent to waive sovereign immunity for

suits against counties. . . . Thus 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.”

Id. at 249-50 (emphasis added). The Pelzel court discussed Missouri

Pacific and distinguished its holding saying, “ Missouri Pacific

involved a different statute than the one in this case and that statute, unlike

the current version of the [presentment] statute here, contained ‘sue and be

sued’ language.” Id. at 251 . Although the Pelzel

court did not expressly state that “sue and be sued” language is clear and

unambiguous, we note that it was the absence of the “sue and be sued”

language in the claim presentation statute that supported the majority’s

conclusion that it did not waive immunity from suit. Id.

Federal Sign v. Texas Southern University

The

first supreme court case to deal with the issue of waiver of immunity after Missouri

Pacific was in 1997 in Federal Sign v. Texas Southern University .

951 S.W.2d at 408 . That case dealt with a waiver of immunity from suit in

a breach of contract case. The appellants in Federal Sign sued

Texas Southern University for violations of the competitive bidding on contracts

statute in the education code and for breach of contract. Id. at

404 . The sign maker won in the trial court, but the appellate court

reversed. Tex. S. Univ. v. Fed. Sign , 889 S.W.2d 509, 512 (Tex.

App.—Houston [14th Dist.] 1994), aff’d , 951 S.W.2d 401 (Tex. 1997).

On appeal to the supreme court, the sign maker contended that it did not need

legislative consent to sue the university because its claims included

allegations that the university violated state law. Fed. Sign , 951

S.W.2d at 404 . The supreme court noted, however, that allegations of the

potential state law violations did not dispense with the necessity that the

appellant obtain legislative consent to sue for breach of contract. Id.

at 404-05 . The court stated that the State’s consent to suit must be by

either statute or legislative resolution, but that the consent must be by

“clear and unambiguous language.” Id. at 405 . Throughout

its opinion, the court cited Missouri Pacific and briefly discussed its

holding. Id. at 405-08 . The Federal Sign court stated

that in Missouri Pacific it held that the statute providing that the

navigation district could “sue and be sued” met the legislative permission

requirement to waive of immunity from suit. Id. at 408 .

The

court in Federal Sign drew the following conclusions: (1) when the State

contracts with private citizens, it waives only immunity from liability; (2)

legislative consent is still required in order for a private citizen to sue the

State on a breach of contract claim; and (3) the act of contracting alone does

not waive the State’s immunity from suit. See id. The

appellant relied solely upon the state law allegations and the conduct of the

university in arguing that sovereign immunity does not apply when the State

enters into a contract with a private citizen. 3

Id. at 404-12 . The court ultimately determined the university, a

state institution, did not consent to suit merely by entering into the

contract. Id.

A

footnote in the majority opinion noted,

We hasten to observe that neither this case nor the ones on which it relies

should be read too broadly. We do not attempt to decide this issue in any

other circumstances other than the one before us today. There may be other

circumstances where the State may waive its immunity by conduct other than

simply executing a contract so that it is not always immune from suit when it

contracts.

Id.

at 408 n.1. Accordingly, the holding in Federal Sign is apparently

limited to the specific conduct and circumstances particular to that case and

leaves the door open for the court to hold that a different type of government

conduct could waive immunity from suit in the future. See id.

General Services Commission v. Little-Tex Insulation

Co.

Next,

in 2001, the supreme court issued its opinion in General Services Commission

v. Little-Tex Insulation Co. 39 S.W.3d at 591 . In that case, a

building contractor sued a state university to recover expenses not allegedly

contemplated in their construction contract. Id. at 593-94 .

The district court granted the university’s plea to the jurisdiction and the

contractor appealed. In a separate action, a state contractor sued the

General Services Commission, alleging breach of contract and violation of the

takings clause in connection with the Commission’s decision to terminate an

asbestos abatement contract. The district court granted the Commission’s

plea to the jurisdiction and the contractor appealed. The court of appeals

reversed and remanded in both cases. DalMac Constr. Co. v. Tex. A &

M Univ ., 35 S.W.3d 654, 657 (Tex. App.—Austin 1999), rev’d , 39

S.W.3d at 591 ; Little-Tex Insulation Co. v. Gen. Servs. Comm’n , 997

S.W.2d 358, 365 (Tex. App.—Austin 1999), rev’d , 39 S.W.3d at 591 . The

supreme court then granted review in both cases. In its opinion, the supreme

court cited Missouri Pacific only once in its discussion about the

concept that governmental immunity encompasses the separate principles of

immunity from liability and immunity from suit. Little-Tex, 39

S.W.3d at 594 (citing Mo. Pac. , 453 S.W.2d at 813 ).

In

Little-Tex, the court stated that in Federal Sign it recently held

that the State does not waive its immunity from suit for breach of contract

simply by entering into a contract for goods and services. Id. at

593 (citing Fed. Sign , 951 S.W.2d at 408 ). The court noted that it

had specifically reserved judgment on whether other circumstances may exist in

which “the State may waive its immunity by conduct other than simply executing

a contract.” Id. (citing Fed. Sign , 951 S.W.2d at 408

n.1). However, after the court issued its opinion in Federal Sign ,

the legislature established an administrative procedure for certain breach of

contract claims against the State. See Tex. Gov’t Code Ann. §§

2260.001-.108 (Vernon 2000 & Supp. 2004-05). 4

Like

it did in Federal Sign , the court again held that the State was entitled

to immunity from suit. Little-Tex, 39 S.W.3d at 598 . It concluded that

the legislature intended the administrative procedure in government code

sections 2260.001-.108 to be the exclusive method available for resolving

certain breach of contract claims against the State. Id. at 596 .

Chapter 2260 of the Texas Government Code retained sovereign immunity from suit

in certain breach of contract claims, but provided an administrative procedure

to resolve those claims. Id. ; see also Tex. Gov’t Code Ann. §§

2260.001-.108.

The

plaintiffs in Little-Tex argued that chapter 2260 did not apply because

the State’s conduct in accepting the benefits of the contract waived immunity,

so obtaining legislative consent was not necessary. Little-Tex , 39

S.W.3d at 596 . The court rejected their argument, stating, “[W]e are not

inclined in this case to impute knowledge to the Legislature of decisions

establishing a waiver-by-conduct exception to immunity when the Legislature made

its intent clear through the words it choose [sic] in Chapter 2260.” Id.

at 597 . The court also stated that “there is but one route to the

courthouse for breach-of-contract claims against the State, and that route is

through the Legislature.” Id. Ultimately, the court held that

the State did not waive its immunity from suit on breach of contract claims by

accepting the benefits of the contract. Id.

Texas Natural Resource Conservation Commission v.

IT-Davy

In

2002, the court issued its opinion in IT-Davy. 74 S.W.3d at 849 .

In that case, a contractor sued the Texas Natural Resource Conservation

Commission for claims arising from an alleged breach of contract. Id.

at 851 . The parties did not dispute that the contractor had fully

performed under the contract. Id. Rather, the dispute was

over “equitable adjustments” provided for in the contract after the

contractor claimed he had incurred additional expenses and lost profits stemming

from materially different site conditions. Id . The contractor argued that

the state agency had waived immunity from suit by fully accepting

benefits under the contract. Id . at 856. The supreme court rejected the

argument and stated, “[W]e reject IT-Davy’s argument that we should fashion

such a waiver-by-conduct exception in a breach-of-contract suit against the

State.” Id . at 857.

The

opinion cites Missouri Pacific twice in support of the proposition that

it is the legislature’s sole province to waive or abrogate sovereign immunity.

Id. at 853 , 857 (citing Mo. Pac. , 453 S.W.2d at 813-14 ).

Ultimately, the court held that the state agency was entitled to governmental

immunity. Id. at 857 .

Texas A & M University-Kingsville v. Lawson

After

Pelzel , see discussion supra , the supreme court decided Lawson

in 2002. 87 S.W.3d at 518 . The issue in Lawson was whether a government

entity could claim immunity from suit for breach of a settlement agreement when

the settlement agreement arose from a lawsuit from which the entity was not

immune. Id. at 519-20 .

The

case involved the breach of a settlement agreement that an employee and the

state university had entered into following the employee’s suit over a

violation of the Whistleblower Act. Id. at 518-19 . In a plurality

opinion, Justice Hecht cited Missouri Pacific twice. Id. at

520 & n.15, 521 & n.21. First, he cited it for the proposition

that sovereign immunity encompasses the separate principles of immunity from

liability and immunity from suit. Id. at 520 & n.15. Second, he noted

that the court in Federal Sign cited it as an example of a situation in

which the legislature has waived immunity for breach of contract claims. Id.

at 521 & n.21. The court concluded that “when a governmental entity

is exposed to suit because of a waiver of immunity, it cannot nullify that

waiver by settling the claim with an agreement on which it cannot be

sued.” Id. at 521 .

Catalina Development Inc. v. County of El Paso

Next

came Catalina Development Inc. in 2003. 121 S.W.3d at 704 . In Catalina,

the court again dealt with the waiver-by-conduct exception to the sovereign

immunity rule. Id. The appellant in that case argued that El

Paso County waived immunity from suit by advertising for bids to sell some land,

accepting appellant’s bid, accepting and depositing the appellant’s earnest

money, and sending the appellant an earnest money contract to sign. Id.

at 705 . The county argued that its conduct constituted acts of contract

formation, which did not waive immunity from suit. Id.

The

appellant in Catalina distinguished his case from Federal Sign

saying that he had fully performed under the contract. Id. at

706 . The court noted that in Federal Sign the State was the buyer

of commercial goods while here the county was the seller of government

land. Id. The appellant did not wish to recover for goods

already conveyed, instead he wished to enforce a sale of land that belonged to

the people of the county. Id. Under these facts, the supreme court

held that the county did not waive immunity from suit. Id.

Courts of Appeals

Many

courts of appeals have also dealt with the issue of waiver of governmental

immunity to suit. Most have held that “sue and be sued” language clearly and

unambiguously waives immunity from suit. A minority of others, however, have

held differently. Accordingly we now briefly review holdings from this court and

others.

This

court has held that “sue and be sued” language waives immunity from suit in

a breach of contract context. 5 See Henry, 52

S.W.3d at 448-49 (analyzing tort and contract claims separately and holding that

“sue and be sued” language of the health and safety code waived hospital’s

immunity from suit for breach of contract); Knowles v. City of Granbury ,

953 S.W.2d 19, 23 (Tex. App.—Fort Worth 1997, pet. denied) (holding that local

government code and city charter providing that city “may sue, and be sued;

[and] may contract and may be contracted with,” waived city’s immunity from

suit); Avmanco, Inc. v. City of Grand Prairie , 835 S.W.2d 160, 165 (Tex.

App.—Fort Worth 1992, writ dism’d as moot) (holding in a breach of contract

case that government code waived city’s immunity from suit by providing that

“a municipality may plead and be impleaded in any court” and city charter

waived immunity from suit by providing that the city “may sue and be

sued”). But cf. City of Fort Worth v. Pastusek Indus., Inc. ,

48 S.W.3d 366, 372 (Tex. App.—Fort Worth 2001, no pet.) (holding that appellee

presented no evidence in pleadings or elsewhere in the record demonstrating

legislative permission to sue city for breach of contract; accordingly, no

waiver of immunity from suit was shown, and appellee could not maintain an

action against city for breach of contract).

A

majority of other appellate courts have also concluded that “sue and be

sued” and similar language expresses the legislature’s general consent to be

sued and waives a governmental entity’s immunity from suit based upon the

binding precedent of Missouri Pacific . 6

Other appellate courts, however, have declined to follow Missouri Pacific

and have held that “sue and be sued” and similar language does not waive a

governmental entity’s immunity from suit. 7

We note that the issue of whether “sue and be sued” and similar language

waives immunity from suit is currently before the Texas Supreme Court in twelve

cases in which petitions for review have been filed or are pending: San

Antonio ISD (San Antonio), Adams (Amarillo), EPGT Tex. Pipeline

(Houston [1st Dist.]), City of Texarkana (Texarkana), MEB Engineering

(Houston [1st Dist.]), United Water Services (Houston [1st Dist.], Clear

Channel (Houston [14th Dist.]), City of Carrollton (Dallas), Browning

Construction Co. (San Antonio), Satterfield (Dallas), Tooke

(Waco), and Goerlitz (El Paso). 8

Summary of Texas Supreme Court Immunity Law

Regardless

of the minority of appellate courts that have held that “sue and be sued”

language does not clearly waive immunity from suit, our review of the supreme

court case law does not reveal that Missouri Pacific has been implicitly

overruled. Missouri Pacific expressly held that “sue and be

sued” language gives general consent to suit, and no Texas Supreme Court case

since Missouri Pacific has addressed exactly the same issue. See

Mo. Pac ., 453 S.W.2d at 813 .

Our

review of the case law from the Texas Supreme Court dealing with waiver of

immunity from suit does not reveal that the court has departed from its holding

in Missouri Pacific in the three decades following the holding.

Nothing in these cases can be construed to overrule the holding of Missouri

Pacific . Additionally, since Missouri Pacific was decided, eight

supreme court cases have cited it, some on different grounds, without indicating

any negative subsequent history regarding its holding that “sue and be sued”

language waives immunity from suit in a breach of contract case. See

Univ. of Tex. S.W. Med. Ctr. at Dallas v. Loutzenhiser , 140 S.W.3d 351 , 358

n.25 (Tex. 2004); Lawson , 87 S.W.3d at 520 n.15, 521 n.21; Pelzel ,

77 S.W.3d at 250-51 ; IT-Davy , 74 S.W.3d at 853 ; Little-Tex , 39

S.W.3d at 594 ; Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex.

1999); Fed. Sign , 951 S.W.2d at 405, 408 ; Guaranty Petroleum Corp. v.

Armstrong , 609 S.W.2d 529, 530 (Tex. 1980).

Regardless,

FWISD argues that the applicable standard for waiver of immunity from suit is by

clear and unambiguous language and that this standard does not comport with the Missouri

Pacific holding that “sue and be sued” language is quite plain

and gives general consent to be sued in the courts of Texas. See Satterfield ,

123 S.W.3d at 67 . While we agree that waiver of immunity from suit must be

by clear and unambiguous language, we do not agree that the Missouri Pacific

holding is inconsistent with this standard. See Tex. Gov’t Code Ann . § 311.034

(dictating that waiver of immunity must be “effected by clear and unambiguous

language”). The use and meaning of the phrase “quite plain” is

consistent with the meaning of “clear and unambiguous.”

Stare

decisis has its greatest force in statutory construction cases. Grapevine

Excavation, Inc. v. Maryland Lloyds , 35 S.W.3d 1, 5 (Tex. 2000).

Adhering to precedent fosters efficiency, fairness, legitimacy, and

predictability in the law. Id . As a lower court, we are bound

by supreme court precedent. Lubbock County v. Trammel's Lubbock Bail

Bonds , 80 S.W.3d 580, 585 (Tex. 2002) (requiring intermediate appellate

courts to follow supreme court precedent and leave to the supreme court the

matter of abrogating or modifying its own precedent); see also Law Offices of

Windle Turley, P.C. v. French , 140 S.W.3d 407, 413 (Tex. App.—Fort Worth

2004, no pet.) (op. on reh’g) (recognizing that court of appeals is bound by

supreme court precedent). Furthermore, precedent from this court dictates

the same result. See cases cited supra p. 26; see also

Mobil Oil Corp. v. Shores , 128 S.W.3d 718, 722-23 (Tex. App.—Fort Worth

2004, no pet.) (op. on reh’g) (basing decision in that case in part on binding

precedent of this court).

“It

is a firmly established statutory construction rule that once appellate courts

construe a statute and the Legislature re-enacts or codifies that statute

without substantial change, we presume that the Legislature has adopted the

judicial interpretation.” Grapevine , 35 S.W.3d at 5 . Since

the supreme court’s decision in Missouri Pacific , the legislature has

codified the statute construed in that case with no change to the “sue and be

sued” language. See Act of March 29, 1971, 62nd Leg., R.S., ch.

58, §§ 1, 2, 1971 Tex. Gen. Laws 110 , 611, 658, 661 (current version at Tex. Water Code Ann . § 62.078 (Vernon

2004)). Additionally, section 11.151 of the education code is a

re-enactment of former section 23.26; the legislature re-enacted that section

without any change in the “sue and be sued” language despite a prior court

of appeals case holding that the “sue and be sued” language waived a school

district’s immunity from suit. See Act of May 27, 1995, 74th

Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207 , 2227 (amended 2003)

(current version at Tex. Educ. Code Ann.

§ 11.151); Act of June 2, 1969, 61st Leg., R.S., ch. 889, § 1, 1969 Tex. Gen.

Laws 2735 , 2954, repealed by Act of May 27, 1995, 74th Leg., R.S., ch.

260, § 58, 1995 Tex. Gen. Laws 2207 , 2498; Dillard , 806 S.W.2d at 594; see

also Fazekas , 565 S.W.2d at 302 (holding immunity from suit waived under

different section of education code, which also contains “sue and be sued”

language).

Accordingly,

we join the majority of the courts of appeals and hold that Missouri Pacific

has not been overruled by implication. See Lubbock County , 80

S.W.3d at 585 . Although we recognize that other statutes may use more explicit

language to waive immunity, 9 that the more recent

trend is for the legislature to waive immunity using more explicit statutory

language; and that review is pending in the supreme court on many cases from our

sister courts on this very issue, we are compelled and bound by Texas Supreme

Court precedent and the principles of stare decisis and, accordingly, must hold

that the “sue and be sued” language of the Texas Education Code waives the

school district’s immunity from suit in a breach of contract case. See

id . We, as an intermediate appellate court, are reluctant to depart

from the black letter of the law. We would rather err on the side of

following controlling supreme court precedent—leaving the enunciation of any

new or evolving standard to that court—than err by encroaching on the

legislative or supreme court lawmaking functions. We sustain appellant’s

first and second issues.

VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES

In

its fifth issue, appellant complains that the trial court erred by dismissing

the case for failure to exhaust its administrative remedies as required under

the education code. Texas law requires that an aggrieved party must first

exhaust all remedies provided under the statutory administrative scheme if the

subject matter (1) concerns the administration of school laws, and (2) involves

questions of fact. Mission ISD v. Diserens , 188 S.W.2d 568, 570 (Tex.

1945); Jones v. Dallas ISD , 872 S.W.2d 294, 296 (Tex. App.—Dallas 1994,

writ denied). An aggrieved party is not required to exhaust administrative

remedies when only a question of law exists. Harlandale ISD v.

Rodriguez , 121 S.W.3d 88, 91-92 (Tex. App.—San Antonio 2003, no pet.).

Former

Texas Education Code section 11.13(a) required that persons having a dispute

arising under the school laws of Texas, or any person aggrieved by actions or

decisions of any board of trustees or board of education, may appeal in writing

to the commissioner of education. Act of June 2, 1969, 61st Leg., R.S., ch.

889, § 1, 1969 Tex. Gen. Laws 2735 , 2757, repealed by Act of May 27,

1995, 74th Leg., R.S., ch. 260, § 58, 1995 Tex. Gen. Laws 2207 , 2498 (current

version at Tex. Educ. Code Ann. §

7.057 (Vernon Supp. 2004-05)). 10 Courts have

interpreted this statute as imposing a mandatory duty to exhaust administrative

remedies before bringing an action in district court. Janik v. Lamar

Consol. ISD , 961 S.W.2d 322 , 323 (Tex. App.—Houston [1st Dist.] 1997, pet.

denied).

Here,

FWISD argues that because appellant’s claims rely upon the interpretation and

application of education code section 37.008(g), the case involves the

administration of school laws. FWISD also contends that former education

code section 11.13(a) dictates that appellant must exhaust administrative

remedies before bringing suit. Jones , 872 S.W.2d at 296 . When

looking at whether appellant must exhaust administrative remedies as a

prerequisite to bringing this case in the trial court, we must analyze this

issue in light of appellant’s pleadings.

Appellant

argues that it was not required to exhaust administrative remedies because it is

a third-party vendor suing for a debt on a breach of contract claim. See

Spring Branch ISD v. Metalab Equip. Co. , 381 S.W.2d 48, 48 (Tex.

1964). In a short per curiam opinion, the court in Spring Branch held

that a suit by a corporation against an independent school district for breach

of contract to buy laboratory equipment did not embrace a complaint relating to

administration of school laws, and an action could be maintained in the trial

court without first exhausting administrative remedies. Id.

Similarly,

the Texarkana court of appeals has also held that a breach of contract action

against a public school district by a vendor that successfully bid on a contract

to furnish vehicles to the district did not relate to the administration of

school laws, and thus was not subject to the exhaustion of remedies

requirement. New Caney ISD v. Burnham AutoCountry, Inc. , 30 S.W.3d

534, 537 (Tex. App.—Texarkana 2000, pet. denied). The claims in New

Caney related to the terms of contract and not the statutory procedures for

bidding on school contracts. Id. The Texarkana court cited Spring

Branch as authority for holding that an action by an outside vendor against

a school district for debt and breach of contract does not relate to the

administration of school laws. Id.

Regardless,

FWISD contends that the interpretation and application of section 37.008(g)

involves the administration of school laws and that issues of fact regarding the

proper amount of funding for a specific education program under school law are

at issue here. FWISD therefore contends that appellant must exhaust

administrative remedies before bringing suit. See Jones , 872 S.W.2d

at 296 .

We

disagree that appellant’s claims can be categorized as “arising under the

school laws of Texas” and automatically trigger the administrative remedies

requirement of former section 11.13(a). As we previously concluded,

appellant’s claims center around the contract and general contract law.

The resolution of the dispute centering on section 37.008(g) of the education

code depends upon whether the contract can be interpreted to include section

37.008(g). To determine if it can, the trial court must necessarily decide

whether the law can be interpreted to mean what appellant says it does and, if

it can, whether it can be incorporated into the contract.

This

is a contract case that depends upon the interpretation of that contract and the

meaning of a statute. And, according to appellant’s pleadings, this case

was not brought under the school laws of Texas, but under the common law of

contract. Although appellant seeks to incorporate section 37.008(g) into

the contract, we conclude appellant’s contract claims do not relate to the

administration of school laws. See Spring Branch ISD , 381 S.W.2d at

48 ; New Caney ISD , 30 S.W.3d at 537 .

Additionally,

it is well-settled that, generally, a party need not exhaust administrative

remedies when the issue before the court is a pure question of law. See

Grounds v. Tolar ISD , 707 S.W.2d 889, 892 (Tex. 1986); City of Austin v.

Pendergrass , 18 S.W.3d 261, 264-65 (Tex. App.—Austin 2000, no pet.).

Statutory construction is a matter of law, which we review de novo. In

re Canales , 52 S.W.3d 698, 701 (Tex. 2001); Johnson v. City of Fort Worth ,

774 S.W.2d 653, 656 (Tex. 1989).

Appellant’s

claims ultimately rely upon the interpretation of the language in section

37.008(g) because appellant interprets the language, “school district shall

allocate to a disciplinary alternative education program,” to mean that the

school district is required to pay appellant an amount equal to that allocated

to students in regularly assigned education programs. Whether

“allocate” and “program” can be interpreted to mean “pay” and

“appellant,” respectively, is a matter of statutory interpretation. As

such, it is a matter of law for the trial court.

We

hold that appellant’s contract claims do not arise under the school laws of

Texas, but under general contract law. Appellant’s claims also depend upon

statutory interpretation of section 37.008(g). Accordingly, we conclude

appellant was not required to exhaust administrative remedies before bringing

its case in the trial court. Appellant’s fifth point is sustained.

VII. CONCLUSION

Having

sustained all of appellant’s points, we reverse the judgment of the trial

court and remand the case for proceedings consistent with this opinion.

TERRIE

LIVINGSTON

JUSTICE

PANEL

A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

CAYCE,

C.J,. dissents without opinion.

DELIVERED:

March 3, 2005

NOTES

1.

Appellant did not allege an actual numerical amount.

2.

Sovereign immunity refers to the State’s immunity while governmental immunity

refers to the immunity of other State-created units such as school

districts. Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692 , 694

n.3 (Tex. 2003).

3.

The court agreed that a private litigant does not need legislative permission to

sue the State for a state official’s violations of state law. Id. at

404.

4.

This statute is not applicable to a contract executed or awarded on or before

August 30, 1999. Tex. Gov’t Code

Ann. § 2260.002(2) (Vernon Supp. 2004-05). The contract between

appellant and FWISD was executed on December 12, 1995 and applied to the 1995-96

school year.

5.

We note that in Texas Department of Mental Health v. Lee , 38 S.W.3d 862

(Tex. App.—Fort Worth 2001, pet. denied), this court held that the mere

incorporation of another statute into health and safety code section 321.001,

which defines treatment facilities to include public facilities, does not,

without more, manifest a clear legislative intent to the contrary to waive

immunity with regard to governmental entities in suits under the Tort Claims

Act. Id. at 871 .

6.

See San Antonio ISD v. City of San Antonio , No. 04-03-835-CV, 2004 WL

2450919 , at *2-3 (Tex. App.—San Antonio Nov. 3, 2004, pet filed) (mem. op.)

(holding that legislature clearly and unambiguously waived immunity from suit

for independent school districts in section 11.151(a) of the Texas Education

Code); City of Lubbock v. Adams , 149 S.W.3d 820, 824-25 (Tex.

App.—Amarillo 2004, pet. filed) (holding that “sue and be sued” language

in city charter waives immunity from suit in accordance with Missouri Pacific

and majority of courts of appeals’ cases); EPGT Tex. Pipeline, L.P. v.

Harris County Flood Control Dist. , No. 01-02-01056-CV, 2004 WL 1794715, at

*7 (Tex. App.—Houston [1st Dist.] Aug. 12, 2004, pet. filed) (holding that

“sue and be sued” language in water code waives flood control district’s

immunity from suit); City of Texarkana v. City of New Boston , 141 S.W.3d

778, 787 (Tex. App.—Texarkana 2004, pet. filed) (holding that the words

“plead and be impleaded” in section 51.075 of the Texas Local Government

Code are synonymous with “sue and be sued” and “waive governmental

immunity from suit in light of the Texas Supreme Court’s decision in Missouri

Pacific Railroad ”); Metro. Transit Auth. v. MEB Eng’g, Inc. , No.

01-04-00022-CV, 2004 WL 1584958, at *3 (Tex. App.—Houston [1st Dist.] July 15,

2004, pet. filed) (holding that transportation code section providing that

transit authority may sue and be sued waives governmental immunity from suit

under Missouri Pacific ); United Water Servs., Inc. v. City of Houston ,

137 S.W.3d 747, 755 (Tex. App.—Houston [1st Dist.] 2004, pet. filed) (holding

that “sue and be sued” language clearly and unambiguously waived city’s

immunity from suit in a breach of contract suit); City of Houston v. Clear

Channel Outdoor, Inc. , No. 14-03-00022-CV, 2004 WL 63561, at *1 (Tex.

App.—Houston [14th Dist.] Jan. 15, 2004, pet. filed) (holding that language

“may plead and be impleaded in any court” clearly and unambiguously waived

city’s immunity from suit); Alamo Cmty. Coll. Dist. v. Browning Constr. Co. ,

131 S.W.3d 146, 154 (Tex. App.—San Antonio 2004, pet. filed) (holding “sue

and be sued” language in education code clearly and unambiguously waived

immunity from suit); Goerlitz v. City of Midland, 101 S.W.3d 573, 577

(Tex. App.—El Paso 2003, pet. filed) (holding immunity from suit waived

because city charter provides the city may sue and be sued); Welch v.

Coca-Cola Enters. , 36 S.W.3d 532, 538 (Tex. App.—Tyler 2000, pet.

withdrawn) (holding immunity from suit waived because education code provides

the school district trustees may sue and be sued); Bates v. Tex. State Tech.

Coll. , 983 S.W.2d 821, 827 (Tex. App.—Waco 1998, pet. denied) (holding

school’s immunity from suit waived because education code provides college

board may sue or be sued); Alamo Comm. Coll. Dist. v. Obayashi Corp., 980

S.W.2d 745, 747-48 (Tex. App.—San Antonio 1998, pet. denied) (holding

school’s immunity from suit waived because education code provides independent

school district trustees can sue or be sued), abrogated in part on other

grounds , Little-Tex , 39 S.W.3d at 598 ; Engelman Irrigation Dist.

v. Shields Bros., Inc. , 960 S.W.2d 343, 348 (Tex. App.—Corpus Christi

1997) (concluding that ”sue and be sued” language in water code section

58.098 “provided clear and unambiguous consent for the Irrigation District to

be sued”), pet. denied, 989 S.W.2d 360 (Tex. 1998); Loyd v. ECO

Res., Inc. , 956 S.W.2d 110, 122-23 (Tex. App.—Houston [14th Dist.] 1997,

no pet.) (holding water code provision stating that water district could sue and

be sued waived immunity from suit); Dillard v. Austin ISD , 806 S.W.2d

589, 594 (Tex. App.—Austin 1991, writ denied) (op. on reh’g) (holding

school’s immunity from suit waived because education code provides school

district trustees may sue and be sued); Fazekas v. Univ. of Houston , 565

S.W.2d 299, 302 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e)

(holding immunity from suit waived because education code provides University of

Houston Board of Regents may sue and be sued), superseded by Act of May

15, 1985, 69th Leg., R.S., ch. 378, § 1, 1985 Tex. Gen. Laws 1466 , 1466

(current version at Tex. Educ. Code Ann .

§ 111.33 (Vernon 2002)); cf. City of San Antonio v. Butler , 131 S.W.3d

170, 177 (Tex. App.—San Antonio 2004, pet. filed) (holding that “plead and

be impleaded” language in local government code and “sue and be sued”

language in city charter does not waive immunity from suit in tort cases, which

are governed by the Tort Claims Act).

7.

See City of Roman Forest v. Stockman , 141 S.W.3d 805, 813 (Tex.

App.—Beaumont 2004, no pet.) (2-1 decision) (holding that, in light of the

“recent emphasis by the Texas Supreme Court and the Texas Legislature on the

necessity of ‘clear and unambiguous’ waiver,” “sue and be sued”

language in local government code does not waive immunity from suit); City of

Carrollton v. McMahon Contracting, L.P. , 134 S.W.3d 925, 927-28 (Tex.

App.—Dallas 2004, pet. filed) (concluding that “plead and be impleaded”

language in local government code does not waive immunity from suit); Satterfield ,

123 S.W.3d at 68 (holding “sue and be sued” language of the education code

did not clearly and unambiguously waive school district’s immunity from suit);

City of Dallas v. Reata Constr. Corp. , 83 S.W.3d 392, 398 (Tex.

App.—Dallas 2002) (holding that “sue and be sued” language refers to the

city’s capacity to sue when immunity has otherwise been waived), rev'd on

other grounds , 47 Tex. Sup. Ct. J. 408 , 2004 WL 726906 , at *3 (Tex. April 2,

2004); Jackson v. City of Galveston, 837 S.W.2d 868, 871 (Tex.

App.—Houston [14th Dist.] 1992, writ denied) (holding that “sue and be

sued” language did not “impliedly” waive a city’s immunity to suit), declined

to follow in Clear Channel Outdoor, Inc. , 2004 WL 63561 , at * 4 ; Townsend

v. Mem’l Med. Ctr., 529 S.W.2d 264, 267 (Tex. Civ. App.—Corpus Christi

1975, writ ref’d n.r.e.) (holding that “sue and be sued” language did not

“impliedly” waive a hospital district’s immunity to suit); Childs v.

Greenville Hosp. Auth., 479 S.W.2d 399, 401 (Tex. Civ. App.—Texarkana

1972, writ ref’d n.r.e.) (holding that “sue and be sued” language did not

“impliedly” waive a hospital district’s immunity to suit, but relying on

pre- Missouri Pacific cases to support its holding). But see City of

Mexia v. Tooke , 115 S.W.3d 618, 621-23 (Tex. App.—Waco 2003, pet. granted)

(holding that language indicating that the city can “plead and be impleaded”

does not constitute clear and unambiguous waiver of immunity from suit, but

recognizing that “sue and be sued” language provides the “requisite

clarity to establish a waiver of immunity from suit”).

8.

San Antonio ISD , 2004 WL 2450919 , at *2-3 (mem. op.) (holding that

legislature clearly and unambiguously waived immunity from suit for independent

school districts in section 11.151(a) of the Texas Education Code); Adams ,

149 S.W.3d at 824-25 (holding that “sue and be sued” language in city

charter waives immunity from suit in accordance with Missouri Pacific and

majority of courts of appeals’ cases); EPGT Tex. Pipeline, 2004 WL

1794715, at *7 (holding that “sue and be sued” language in water code waives

flood control district’s immunity from suit); City of Texarkana, 141

S.W.3d at 787 (holding that the words “plead and be impleaded” in section

51.075 of the Texas Local Government Code are synonymous with “sue and be

sued” and “waive governmental immunity from suit in light of the Texas

Supreme Court’s decision in Missouri Pacific Railroad ”); MEB

Eng’g, Inc. , 2004 WL 1584958, at *3 (holding that transportation code

section providing that transit authority may sue and be sued waives governmental

immunity from suit under Missouri Pacific ); United Water Servs., Inc.,

137 S.W.3d at 755 (holding that “sue and be sued” language clearly and

unambiguously waived city’s immunity from suit in a breach of contract suit); Clear

Channel Outdoor, Inc. , 2004 WL 63561, at *1 (holding that language “may

plead and be impleaded in any court” clearly and unambiguously waived city’s

immunity from suit); City of Carrollton , 134 S.W.3d at 927-28 (concluding

that “plead and be impleaded” language in local government code does not

waive immunity from suit); Browning Constr. Co. , 131 S.W.3d at 154

(holding “sue and be sued” language in education code clearly and

unambiguously waived immunity from suit); Satterfield , 123 S.W.3d at 68

(holding “sue and be sued” language of the education code did not clearly

and unambiguously waive school district’s immunity from suit); Tooke ,

115 S.W.3d at 621-23 (holding that language indicating that the city can

“plead and be impleaded” does not constitute clear and unambiguous waiver of

immunity from suit, but recognizing that “sue and be sued” language provides

the “requisite clarity to establish a waiver of immunity from suit”); Goerlitz,

101 S.W.3d at 577 (holding immunity from suit waived because city charter

provides the city may sue and be sued).

9.

Clear and unambiguous waivers of consent to suit include, for example, the Tort

Claims Act, which provides that “[s]overeign immunity to suit is waived and

abolished to the extent of liability created by this chapter.” Tex. Civ. Prac. & Rem. Code Ann. §

101.025(a). The Private Real Property Rights Preservation Act states that

“[s]overeign immunity to suit and liability is waived and abolished to the

extent of liability created by this chapter.” Tex. Gov’t Code Ann. § 2007.004(a)

(Vernon 2000). The Whistleblower Act allows public employees who allege a

violation of the act to “sue the employing state or local governmental entity

for the relief,” and dictates that “[s]overeign immunity is waived and

abolished to the extent of liability for the relief allowed under this

chapter.” Id. § 554.0035 (Vernon 2004).

10.

The repealing act contained a savings provision stating that any appeal of an

action taken or a decision made by a board of trustees before January 1, 1996 is

governed by section 11.13 of the education code as it existed before it was

repealed. Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 60, 1995 Tex.

Gen. Laws 2207 , 2499.