553 S.W.3d 1
Tex. App.2017Background
- Duwain E. Hughes, Jr.'s will left mineral interests, a home and collections to Tom Green County and SMU (for an endowed English chair); heirs contested allocation of excess funds.
- County intervened in SMU litigation seeking residuary funds; Hughes later intervened asserting heirs' rights to remaining mineral interests.
- Hughes and Tom Green County executed a Mutual Partial Assignments agreement (MPA) before mediation to split any recovery from SMU and to request naming the main library for Hughes if recovery was "substantial enough."
- The parties settled with SMU for $1,000,000; County deposited proceeds into the Hughes Library Fund, later used to acquire/remodel the main library, but Commissioners declined to name the library for Hughes.
- Hughes sued (2013) for breach of the MPA, unjust enrichment/money had and received, and Open Meetings Act violations; County filed a plea to the jurisdiction asserting governmental immunity for claims tied to the MPA.
- Trial court granted the plea as to MPA-related claims; Hughes appealed interlocutorily. Open Meetings claim was not before this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County waived immunity by intervening and settling in the SMU litigation (Lawson theory) | Hughes: County voluntarily intervened, settled claims related to that litigation via the MPA, so it cannot claim immunity for breach of that settlement. | County: Intervention did not assert affirmative claims against Hughes; MPA was a joint-defense allocation, not a settlement of claims between Hughes and County; no statutory waiver applies. | Court: No waiver. Reata/Lawson inapplicable because County did not seek affirmative relief against Hughes and no statutory waiver exists. |
| Whether County waived immunity by its conduct ("waiver-by-conduct") | Hughes: County executed MPA, accepted proceeds, ratified agreements, used funds, then refused to name library — these acts constitute waiver-by-conduct. | County: Contracting and subsequent actions do not waive immunity absent legislative consent; courts have refused to adopt waiver-by-conduct. | Court: No waiver-by-conduct. Declined to extend State Street; followed Supreme Court precedent refusing judicial waiver-by-conduct. |
Key Cases Cited
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (judicially limited waiver where government sues and defensive, related claims are permitted to offset recovery)
- Texas A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002) (statutory-waiver context: government cannot claim immunity to bar enforcement of settlement resolving claims for which immunity was waived)
- Federal Sign v. Texas Southern Univ., 951 S.W.2d 401 (Tex. 1997) (court declined to find waiver by contracting but suggested possible waiver-by-conduct in footnote)
- General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) (refused to adopt judicial waiver-by-conduct; legislative route is required for breach-of-contract suits)
- Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922 (Tex. 2015) (governmental immunity protects political subdivisions from suit unless Legislature consents)
- Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) (Lawson is limited to statutory waivers; immunity not waived absent applicable statute)