City of Georgetown, Texas v. Lower Colorado River Authority
413 S.W.3d 803
Tex. App.2013Background
- LCRA sued Georgetown for declaratory relief regarding a long-term Wholesale Power Agreement (WPA) under which Georgetown buys all its power from LCRA and resells to its customers.
- The WPA expires June 25, 2016; Georgetown notified LCRA of nonrenewal.
- LCRA asserted Georgetown’s governmental immunity was not waived; LCRA alternatively sought to rely on statutory waivers.
- Georgetown contends the dispute involves a proprietary function, not a governmental one, and thus immunity should apply unless waived.
- Trial court denied Georgetown’s plea to the jurisdiction; this interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the proprietary-governmental dichotomy apply to contract claims at common law? | LCRA | Georgetown | Yes, common law dichotomy applies to contract claims. |
| Did the legislature abrogate the common-law proprietary-governmental dichotomy for contract claims? | LCRA | Georgetown | No, legislature did not abrogate; đường Wheelabrator reading rejected. |
Key Cases Cited
- City of Galveston v. Posnainsky, 62 Tex. 118 (Tex. 1884) (established proprietary-governmental dichotomy)
- Gates v. City of Dallas, 704 S.W.2d 737 (Tex.1986) (governmental vs. proprietary functions framework in municipal acts)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex.2006) (contract claims and waivers; questioned application of dichotomy to contract claims)
- City of Tyler v. Likes, 962 S.W.2d 489 (Tex.1997) (legislature can redefine municipal functions via statute)
- Ben Bolt v. Texas Subdivisions, 212 S.W.3d 320 (Tex.2006) (immunity from suit vs. immunity from liability)
- Nueces County v. San Patricio County, 246 S.W.3d 651 (Tex.2008) (caution against treating immunity from suit as equivalent to liability waiver)
- Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 381 S.W.3d 597 (Tex.App.-San Antonio 2012) (discussed legislative silence vs. abrogation of dichotomy)
- Texas Civ. Prac. & Rem. Code § 101.0215, (statutory provision cited; not an appellate reporter citation) () (defines operation and maintenance of a public utility as proprietary)