City of El Paso, Mayor Oscar Leeser, City Representatives Emma Acosta, Carl L. Robinson, Michiel R. Noe, Courtney C. Niland, Ann Morgan Lilly, Larry Romero, Claudia Ordaz and Lily Limon v. Waterblasting Technologies, Inc. and Thomas G. Wicker, Jr.
491 S.W.3d 890
Tex. App.2016Background
- In Dec. 2013 El Paso solicited sealed bids for a water‑blasting unit (> $50,000) under Chapter 252; bids were opened Jan. 8, 2014 and the contract was awarded to Team Eagle on Feb. 25, 2014.
- Waterblasting Technologies, Inc. (WTI) and Thomas G. Wicker sued the City, Mayor, and City Council (and initially Team Eagle and Nilfisk), seeking a declaratory judgment that the award violated Chapter 252 and injunctive relief under Tex. Loc. Gov’t Code § 252.061 to enjoin payment/performance.
- The City filed a plea to the jurisdiction asserting governmental immunity, lack of statutory standing, and that City officials retained immunity for their vote; the trial court denied the plea and the City appealed interlocutorily.
- The Court of Appeals considered (1) whether § 252.061 waived municipal immunity, (2) whether plaintiffs had statutory standing under § 252.061, (3) whether the claims were moot due to contract performance, and (4) whether ultra vires claims against city officials were permissible.
- The court held § 252.061 waives municipal immunity for parties with standing, found Wicker (a taxpaying resident) had standing but WTI (losing bidder) did not because the procurement was for equipment, not "construction of public works," and concluded plaintiffs’ claims against the City and City officials were moot or barred as retrospective relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 252.061 waives municipal sovereign immunity | §252.061 creates a cause of action to enjoin performance/payment and thus waives immunity | No express waiver language; immunity remains | Waiver: court holds §252.061 waives municipal immunity for parties with statutory standing because remedies require naming the municipality |
| Whether Wicker and WTI have standing under §252.061 | Both pleaded standing: Wicker as a property taxpaying resident; WTI as a losing bidder for a public‑works contract | City: standing limited by statute’s text; bidders only if contract is for "construction of public works"; taxpayer standing limited to tax‑funded expenditures | Wicker has standing as a taxpaying resident irrespective of fund source; WTI lacks bidder standing because purchase of equipment is not "construction of public works" |
| Whether plaintiffs’ claims are moot | Plaintiffs sought injunction/declaratory relief to block payment/performance | City: contract fully performed and paid; relief would be ineffective or retrospective | Moot: because delivery and payment occurred, injunctive and declaratory relief against the City are moot and must be dismissed |
| Whether ultra vires claims against Mayor/City Council permit relief | Plaintiffs contend council acted ultra vires in awarding contract in violation of Chapter 252 | City argues officials acted within authority; ultra vires suits cannot seek retrospective relief | Ultra vires claims fail: with contract performed there is no ongoing violation; ultra vires permits only prospective relief, not retroactive invalidation or recovery |
Key Cases Cited
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for plea to the jurisdiction and pleading burden for jurisdictional facts)
- Heinrich v. Board of Trustees of City of El Paso Police & Fire Pension Fund, 284 S.W.3d 366 (Tex. 2009) (ultra vires suits permit only prospective relief; retrospective monetary relief barred)
- Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1 (Tex. 2000) (interpreting statutes to determine whether legislative scheme permits suits against state agencies despite no express waiver)
- Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003) (aids for determining whether statute effects waiver of sovereign immunity)
- City of Dallas v. TCI West End, Inc., 463 S.W.3d 53 (Tex. 2015) (statutes should be construed to give meaning to all provisions and avoid rendering parts meaningless)
- Labrado v. County of El Paso, 132 S.W.3d 581 (Tex. App.—El Paso 2004, no pet.) (analogous county‑procurement statute construed to waive immunity; mootness/ability to enjoin after performance)
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (limits on relief where only past contract performance remains; standing and mootness principles)