Republic Power Partners, L.P. v. City of Lubbock
424 S.W.3d 184
Tex. App.2014Background
- Formed WTMPA in 1983 by Brownfield, Floydada, Lubbock and Tulia to obtain reliable electric energy.
- WTMPA is a municipal power agency under Texas Utilities Code ch.163; a separate municipal corporation.
- WTMPA sourced power from SPS under a Power Purchase Agreement through May 2019.
- In 2007 SPS declined renewal; WTMPA pursued new generation project with Republic Power under a Development Agreement.
- Dispute arose over surplus revenues; City of Lubbock objected to bond issuance, leading to a dismissal of a related bond-validation suit.
- Republic Power sued Lubbock and WTMPA for breach of the Development Agreement; the trial court granted Lubbock’s plea to the jurisdiction and Republic Power appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immunity bars contract claim due to proprietary function | Republic Power: Lubbock’s function is proprietary; immunity should not apply | Lubbock/WTMPA: proprietary function does not remove immunity for contract claims | Issue 1 overruled; immunity applies to breach of contract. |
| Whether § 271.152 waives immunity for the contract | Republic Power: waiver applies since contract falls under subchapter I | Lubbock: parties not properly signatory; 271.152 not satisfied | Issue 2 overruled; waiver does not apply. |
| Whether immunity can be waived by conduct | Republic Power: conduct could waive immunity | Lubbock: no waiver by conduct under IT-Davy/Sharyland | Issue 3 overruled; no waiver by conduct recognized. |
Key Cases Cited
- Wheelabrator Air Pollution Control v. City of San Antonio, 381 S.W.3d 597 (Tex. App.—San Antonio 2012) (proprietary function not exempt from contract waiver)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (two components of immunity; waivers through statutes)
- City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011) (271.152 waiver clear and unambiguous)
- Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320 (Tex. 2006) (immunity from suit vs liability; strict waiver interpretation)
- Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829 (Tex. 2010) (271.152 contract scope and waiver)