explaining that when governmental entity asserts affirmative claims for monetary relief, trial court has jurisdiction over those claims as well as “certain offsetting, defensive claims asserted against the entity .... because the judiciary has abrogated the [Statej’s common law immunity from suit as to certain offsetting claims”
How later courts described this case
- explaining that when governmental entity asserts affirmative claims for monetary relief, trial court has jurisdiction over those claims as well as “certain offsetting, defensive claims asserted against the entity .... because the judiciary has abrogated the [Statej’s common law immunity from suit as to certain offsetting claims”
- explaining that the Court had abrogated immunity against such counterclaims "for two primary reasons: first, it would have been fundamentally unfair," and second, "the City had little room to complain about litigation costs because it had decided to expend resources on litigation when it filed its affirmative claim"
- holding that police officers’ claims against city were properly defensive to city’s claim because “a finding, that an officer had been underpaid would at least inferential!y rebut the City’s claim that the officer had been paid correctly or. overpaid for the particular period for which the underpayment was made”
- holding that governmental entity has immunity from suit as to “claims for amounts over and above the amount that would offset the City’s claim but were nevertheless germane to, connected with, and properly defensive to the [entity’s] claims”
Written by the judges who cited it.
The opinion
Justice WILLETT,
dissenting.
Does Local Government Code Section 271.152 apply to waive the City’s immunity? The Court wisely concludes the trial court should first tackle this potentially dispositive issue. If Section 271.152 applies, then that’s that — the City has no immunity — making the balance of today’s decision purely advisory, something the Court readily admits: “some of our discussion may not be necessary.” 1 To clarify, the Court is unwilling to decide what is possibly controlling but willing to pre-de-cide what is purely contingent. If bad facts make bad law, then old cases make odd law. This litigation began in 1994, and I well understand the Court’s desire to prod it along. But we should not leapfrog lower-court review by pre-answering a host of subsidiary questions that will never be asked if Section 271.152 indeed applies. Finding the Court’s advisory opinion inadvisable, I respectfully dissent.
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The myriad governmental-immunity issues in this case provoke varied views. In their competing opinions, Justice Johnson and Justice Hecht debate a particularly vexing point: the existence (or not) of the City’s immunity once it nonsuited its counterclaims. I think it unnecessary and improper for the Court to reach this and other satellite issues unless and until it determines that Section 271.152 is inapplicable — if it is. That “if’ is mighty consequential, and mighty worthy of lower-court examination.
As the Court recognized earlier this year and reaffirms today, Section 271.152 effects a “clear and unambiguous” (and retroactive) waiver of governmental immunity in certain breach-of-contract suits. 2 Is this such a suit? If so, then the City lacks immunity. 3 What weight is then due the Court’s lengthy discussion of various other issues, all interesting but all incidental (the effect of the counterclaim, the declaratory-judgment action, and the referendum)? 4 As my LSAT instructor used to (mis)state: “It’s irrelevant.”
*384 Under article V, section 8 of the Texas Constitution, we decide concrete cases; we do not dispense contingent advice. The “judicial power does not embrace the giving of advisory opinions,” 5 those that decide an academic 6 or “abstract question of law without binding the parties.” 7 Prudent development of the State’s jurisprudence requires that courts refrain from giving “advice ... upon speculative, hypothetical, or contingent situations.” 8 To be sure, this long-running case poses important issues of Texas immunity law, issues we may need to decide one day. But today is not that day.
As the Court notes, Section 271.152 was enacted while this case was already at the court of appeals, meaning the trial court never had an opportunity to consider its applicability. Likewise, the court of appeals did not discuss it, and neither party challenged that court’s decision not to discuss it. Today this Court wisely declines to short-circuit lower-court review of whether Section 271.152 waives the City’s immunity, a path we have consistently followed in analogous Chapter 271 cases. 9 My quibble lies in the Court’s eagerness to undertake a full-dress analysis of various subissues, all of which evaporate if Section 271.152 applies. The Court has enough to keep itself busy without premature prede-cisions and consultative guidance that presupposes — if not predestines — a certain lower-court path.
Again, because I find the Court’s opinion advisory — and thus inadvisable — I respectfully dissent.
. The Court acknowledges that if Section 271.152 applies, "some of our discussion may not be necessary to resolution of the issues.” Ante at 374 n. 5.
. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.2011); see also Tex. Loc. Gov’t Code § 271.152.
. Tex. Loc. Gov’t Code § 271.152
. See ante § II A-B, D-E.
. Firemen's Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex.1968).
. See City of West Univ. Place v. Martin, 132 Tex. 354 , 123 S.W.2d 638, 639 (Tex.1939).
. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).
. Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (citing Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex.1988)).
. City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex.2007); City of Houston v. Clear Channel Outdoor, Inc., 197 S.W.3d 386, 386-87 (Tex.2006); McMahon Contracting, L.P. v. City of Carrollton, 197 S.W.3d 387, 387 (Tex.2006).