Reata Construction Corp. v. City of Dallas

REATA CONSTRUCTION

CORPORATION,

Petitioner, DALLAS, Respondent.

CITY OF

No. 02-1031.

Supreme Court of Texas.

Argued Dec.

Decided June Jr., Alcan- Rebecca M.

Lеe L. Cameron Stewart, tar, Jeffrey Os- Amy Elizabeth Marshall, Moskovitz Elser mon Wilson Dallas, LLP, peti- Dicker Edelman & tioner. Background Jr., I. City Atty., Black

Charles S. Asst. City Essenburg, Julie B. Office Dynamic Ca- City of Dallas issued The Dallas, Han- G. Atty. of Deborah Inc., a tem- Corporation, ble Construction kinson, of Deborah Hankinson Law Office optic fiber cable porary license to install PC, Dallas, respondent. for Rea- Dynamic subcontracted with Dallas. Corporation to do the ta Construction Crouch, City Asst. Malinda York Sr. drilling project. for the Reata inadver- Clark, Houston, Atty., Elliot Winstead Se- main, thirty-inch tently drilled into a water Minick, P.C., Rafael Edward chrest & flooding nearby building owned Cruz, Gen., Atty. of the Kristofer Office S. Group, Inc. Properties Southwest South- Monson, Gen., Wаyne Asst. Don Solicitor negli- and Dynamic west sued Reata Jr., Gen., Austin, Cruse Asst. Solicitor building gence, and some tenants the Powers, Atty., County Bruce S. Asst. third-party Reata filed a intervened. Houston, Boyd, William M. John R. City that the against alleging claim the P.C., Stooksberry, Boyd Yeigel, McKinney, the City negligently misidentified water Lyon, Lyon & Associ- Robert C. Robert answering main’s location. Before Reata’s ates, Rowlett, Gorsky, Lyon Gorsky Bob claim, in City the intervened third-party Baskett, al., Dallas, Cain, L. et Delmar case, asserting negligence the claims Counsel, Station, College Office of Gen. A few weeks after in- against Dynamic. Bradshaw, Rogers, tervening City Miles T. Feldman & in the answered special excep- and filed L.L.P., Dallas, petition Rеata’s for amicus curiae. that claims were asserting tions Reata’s Act’s not within the Texas Tort Claims opinion Justice JOHNSON delivered the See TEX. CIV. immunity. waiver Court, in which Chief Justice § & REM. CODE 101.021. The PRAC. JEFFERSON, WAINWRIGHT, Justice plea filed an amended City subsequently MEDINA, Justice and Justice GREEN negligence asserting intervention claims joined. plea Reata and immunity from asserting governmental grant City We of Dallas’s motion for that response claiming suit. filed a Reata rehearing. opinion We withdraw our (1) apply did not governmental April following and substitute the City subjected itself to the because the place. in its jurisdiction by intervening trial court’s The issue in this case is whether the relief; seeking affirmative the lawsuit and City governmental immunity of Dallas has (2) City Dallas and section Charter from suit for claims Reata Construction Texas Local Government 51.075 of the Corporation arising City’s alleged from the express Code contain waivers negligence. appeals The court of held re- they provide, because mental City immunity. had We conclude that City may “sue or be spectively, immunity from suit (3) does not have impleaded”; and be “plead sued” and to, germane as to Reata’s claims which are law, City could not under the common with, properly connected defensive to immunity for its ac- governmental assert claims, to the extent Reata’s City’s identify properly failing tions City. claims offset those asserted priоr main’s location to 1970 because water appeals’ judgment proprie- the court of considered We reverse water services were (4) function; if the Texas trial court for even tary and remand the case to the claim fell applied, Act Reata’s Tort Claims proceedings. further jurisdiction by intervening the lawsuit immunity. within the Act’s waiver of The (2) relief; City’s plea trial court denied the the Dal- seeking affirmative jurisdiction, City took an interlocu- and the City Charter and section 51.075 of the las TEX. tory appeal. See CIV. PRAC. & Local Code contain ex- Texas Government 51.014(a)(8). § REM. CODE governmental press waivers of respectively, they provide, because of Reata’s asserted bases Rejecting each City may “plead “sue or be sued” and immunity, for a waiver of even if the impleaded”; and be appeals reversed and dis- the court of applied, Reata stat- Texas Tort Claims Act City. missed Reata’s claims of im- ed a claim within the Act’s waiver appeals 400. The court of held munity. City though that even intervened Reata,

the suit such action the Sovereign Immunity II. City right asserted its to sue but did governmental immunity its from waive “Sovereign immunity protects Id. at suit. 398-400. money from lawsuits for dam State Anderson, Clayton & Co. v. State ex ages.” Tex. Natural Res. Conservation Allred, 530, 107, rel. 62 S.W.2d 849, IT-Davy, 74 853 Comm’n v. S.W.3d “[Wjhere (1933), a state 110 we stated: (Tex.2002). Political subdivisions voluntarily and submits its files suit state, cities, including are entitled such judicial it will rights for determination bе immunity governmental to as —referred thereby and the defense will be bound immunity it has been waived.1 —unless all plead prove entitled to matters Taylor, Hosp. v. See Falls State Wichita properly defensive. This includes (Tex.2003). 692, 694 n. 3 Sov 106 S.W.3d right to make defense answer or immunity immunity encompasses ereign to the matter in cross-complaint germane a suit unless the from which bars controversy.” appeals But the court of consented, immunity from state has language opinion on other in that relied the state liability, protects which State, having invoked providing that if it has consented to the judgments even court, jurisdiction of the was district Jones, Transp. v. 8 Dep’t suit. Tex. of other liti- “subject to the same rulеs as (Tex.1999). We have held S.W.3d may such rules gants, except so far as sovereign immunity from suit de that by statute modified in favor of the State be subject-matter juris a trial of prives court may inapplicable or unenforceable diction. Tex. Parks & Wildlife inherent in sover- exemptions because of (Tex.2004); Miranda, 133 S.W.3d (quoting at 399 eignty.” Jones, 8 S.W.3d at 638. 110). The court of 62 S.W.2d at governmen- concluded that when a appeals a common- Sovereign lawsuit, in a “sover- entity tal intervenes initially developed with law doctrine immunity still forecloses suit eign enact or constitutional any legislative out entity.” Id. governmental Virginia, 6 Wheat. ment. Cohens See (1821) (1) 5 L.Ed. 257 19 U.S. Court, Reata asserts In this citing (recognizing the doctrine without apply did not because mental authority); statutory constitutional subjected the trial court’s itself to immunity. reference, governmental ‍‌‌‌​‌​‌‌​​​​​​​​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌‍ereign immunity and we will use the term 1. For ease of immunity” "sovereign to reference both sov- Leg- to the generally deferred We have Young, v. De Hosner (same); University- see also Tex. A & M to waive because islature Lawson, 518, 520 Kingsville v. suited to address Legislature is better consistently deferred We have IT- See conflicting policy issues involved. immunity. Legislature to waive such lack immu- at 854. A Davy, 74 S.W.3d 854; Guillory IT-Davy, 74 S.W.3d at functions nity may hamper governmental Auth., v. Port Houston used for resources to be by requiring tax State, (Tex.1993); Duhart v. judgments defending paying lawsuits 740, 741 Lowe v. Tex. S.W.2d for their using than those resources rather (Tex. Univ., Tech S.W.2d Legislature Id. The purposes. intended 1976). previously have discussed the We preserve desire to its expressed has its entity possibility managing fiscal matters interest immunity by certain ac might waive its through appropriations process tions, legislative even absent waiver immunity unless it maintaining sovereign Dev., immunity. See Catalina Inc. v. oth- clearly unambiguously stated has Paso, County El 705-06 § TEX. CODE 311.034. erwise. GOV’T (Tex.2003). However, there is tension be Supreme has also The United States Court entity concept governmental tween the of a recognized money damages that suits for by some waiving immunity its from suit “may threaten the financial against states independent Legislature’s action from the of the States” and that “at the integrity waiving immunity principle and the that many of the States founding, time of the only Legislature sovereign the can waive insolvency into but could have been forced immunity. IT-Davy, 74 S.W.3d at immunity for private for their suits 853. There is also tension between the Maine, v. 527 money damages.” Alden concept governmental entity waiving of a 2240, 144 L.Ed.2d U.S. 119 S.Ct. immunity principle its from suit and the (1999). However, governmental if the 636 subject-matter juris that a court’s lack of entity interjects itself into or chooses to generally diction cannot be waived. See to assert affirmative engage litigation 141 Pugh, Fed. Underwriters Exch. v. monetary entity damages, claims for Recog 600 S.W.2d made a decision to presumably will have nizing sovereign immunity that is a com litigation costs. expend pay resources to doctrine, mon-law we have not foreclosed operate opposing party’s If the claims can possibility judiciary may that the modi to reduce the only as an offset fy abrogate immunity by modify such be recovery, ment’s no tax resources will ing Taylor, common law. See pay judgment, to a and the upon called 695-96; at see also Tex. S.W.3d entity governmental of the planning fiscal Miller, Criminal Justice S.W.3d Therefore, a de- disrupted. should not be (Tex.2001) (not (Hecht, J., concurring) entity’s governmental that a termination ing judicial immunity may that abolition to a immunity from suit does not extend Legislature to necessary prompt to suit is entity has filed situation where system determining enact a reasoned for issues involved policy consistent with responsibility for its government’s situation, we be- immunity. In this with torts). Therefore, judicia it remains the fundamentally unfair to it would be lieve to ry’s responsibility define the boundaries to affir- entity assert governmental allow a common-law doctrine and to deter while claim- against party mative claims sovereign mine under what circumstances party’s immunity as to the ing it had exists the first instance. it. claim against claims See Guar. Trust Co. was connected with the State’s States, 126, 134-35, taxes for different as two involved United 304 U.S. years. months and Id. at 710. our While (noting S.Ct. 82 L.Ed. 1224 opinion specifically in Humble did not Oil allowing against foreign the rule claims address the issue of whether the trial court sovereign that has asserted its own claims jurisdiction had over Humble’s claims principles is assumed to be founded on State, against acknowledged we justice); Cunningham, see also v. Parkdale circumstances, certain a defendant would (Tex.1983) Bank, S.W.2d against a claim be entitled assert (stating requires that fundamental fairness State if the filed suit. State parties to be heard on the merits their cases). In v. Texas Commission on Kinnear (Tex. Rights,

Human Analysis III. 2000); acknowledged we that the trial court had over claims City’s A. The Claim for Relief in a had filed State case where State Although may there have been some Kinnear, In the Texas suit. Commission question regarding after Anderson wheth- Kin- Rights on Human filed suit er continues exist near, alleging he had violated the when an affirmative claim for relief is filed Housing Texas Fair Act. Id. at 299. Kin- entity, subsequent attorney’s fees as near counterclaimed cases indicate that under such circum- Act, provided by pre- and when he longer stances from suit no com- vailed, the trial court awarded them. Id. pletely governmental entity.2 for the exists response question at In Co., Refining jurisdiction, State v. Humble Oil & whether the trial court had we “[bjecause (1943), initi- Tex. we said that the Commission S.W.2d proceeding in a tax under the Texas [the] considered whether a defendant ated Act, Housing Fair and Kinnear claimed against could an offset the suit assert suit, that attorney consequence fees as a previously overpaid. for it had State taxes jurisdictional question in this case the was the appeals The court of concluded the filed suit.” answered when Commission announced in Anderson the applied: rule Later, concurring justices in a Id. four to claim an offset defendant was entitled opinion cited Kinnear plurality any dependent upon for matter or connect- that “the proposition Anderson for the the suit. Id. at 709. ed with State’s We immunity by filing can suit.” State waive stated that have no fault to find with “[w]e (Hecht, J., at IT-Davy, 74 S.W.3d rule of announced in ... Anderson the law concurring). ... in a case.” Id. applied proper when However, went on to hold that the we such as those now be- circumstances apply us, rule did not in Humble governmental entity Anderson has fore where (1) by application joined litigation process because its would abol- into the assert- Oil monetary claims for ing the rule that taxes due the State can- its own affirmative ish relief, govern- offset, befalling see no ill the defendant’s claim we not be However, City argues Republic, 2 Tex. 2. The that Anderson is in conflict distinguishable are from Anderson prior two cases from this Court in which those cases with they by the defen- immunity because involved claims we held had not been waived as governmen- against governmental for unrelated to the brought enti- dants set-offs claims 595-96; Borden, 2 at ty plaintiffs by tal entities' claims. Tex. the defendants. See Borden v. Houston, Bates, (1847); 2 Tex. at 616-17. Bates v. jurisdiction over acquire trial court did not entity hampering mental of its par- damages against City by allowing functions adverse a claim for mental offset, assert, to offset the germane damages as an claims excess of sufficient ties to to, with, La properly recovery, any. City defensive if See City’s connected governmental en- Barfield, to those asserted Porte v. And,

tity. our decisions that at 110 against the entity from suit does not bar claims that when a (holding if are con- governmental entity the claims will entitled to files “the defense to, to, germane nected and defensive def properly all matters plead prove effect, entity, in ensive”).3 claims asserted immunity doc- modified the common-law City’s of claims Because the assertion and, extent, abrogated to an immuni- trine against Reata means that the damages for ty entity suit. See Hum- filed City does not have from Reata’s Oil, 710; Anderson, at ble S.W.2d extent we have ex- claims to the limited at 110. above, plained we must consider Reata’s Therefore, if the remaining arguments hold that the deci to determine we City City’s immunity of Dallas to file suit for from suit has been com- sion damages encompassed pletely a decision to lеave in some manner. waived immunity from for claims sphere its suit Act B. Texas Tort Claims to,

against germane it which are connected to claims the properly with and defensive ap claims that the court of Reata City asserts. it affirmative Once asserts its claims peals holding erred monetary recovery, City claims for City fit do not within participate litigation process must in the as immunity under the Tort Claims waiver of ordinary litigant, an for save the limitation Act. Reata claims that Specifically, that the continues to have liberally appeals court of did not construe damage from affirmative claims asserting damages per as for pleadings its monetary exceeding relief amounts injuries. Transp. sonal necessary City’s to offset claims. (Tex.2002) Ramirez, 864, 867 Moreover, no we see substantive difference liberally (noting pleadings should be by City a decision to file an between the jurisdiction). in construed favor of original City’s suit and the to decision file Act, Through Legis- the Tort Claims the its claim an in as intervenor Southwest’s City’s immunity the lature has waived Accordingly, City suit. when the filed its injury by caused “personal and death so affirmative claims for relief as an interve- tangible personal or use of condition nor, subject-matter trial court acquired the unit if the property real against over the claims made would, private person, were it a be liable to, to, City germane which were connected according to Texas law.” the claimant and defensive to the matters on properly TEX. & REM. CODE CIV. PRAC. City which the based its claim for dam 101.021(2). § ages. See 62 S.W.2d at 110. of concluded that appeals the The court Legislature’s Absent waiver suit, however, the immunity damages none of the claimed City’s from decided, McGee, Tex. 36 S.W.2d 3. At the time Anderson was a claim (1931) (stating pleaded error in a defensive "defendant in of an offset was referred as defenses”). Corp. ... certain offsets and matter. See Sw. Contract Purchase defense anguish dam mune from suit for a tort unless was City—property and mental Act). Tort expressly under that subsec waived Claims ages—-werereсoverable construction, statutory we argues tion. at 396. Reata Under rules of 83 S.W.3d Tort Act personal injury damages give precedence that a claim for Claims Tort over section 51.075 because the was made as the intervenors asserted later-enacted, generators spe used flooded Claims Act is the more fumes from in the regarding immunity cific of building after the shorted out the statute waiver water However, in TEX. electricity made them sick. sec tort cases. See GOV’T CODE 101.021(2) Moreover, City § only immunity when 311.026. Tooke v. tion waives of Mexia, 197 S.W.3d 2006 WL governmental unit is the user of the (Tex.2006), have held that the we property. Hosp. Antonio v. Co San State (Tex.2004). phrase “plead impleаded” and be section wan, 244, 245-46 clearly unambiguously 51.075 does not City There is no claim that the was the legislative reflect intent to waive generators. user at 697- Taylor, from suit. See argues Reata also its claim if properly pleaded not to demonstrate a was City’s claims im also Reata immunity, given it should be waiver munity City Dallas is waived Char case is opportunity to amend before its may City ter which states that the “sue Parks & dismissed. See im- “implead and be sued” and and be Miranda, 217, 226- Wildlife TEX., DALLAS, CHAR pleaded.” CITY (Tex.2004). But, court, trial II, 1(2), explain § TER ch. As we claiming City special exceptions twice filed Tooke, togeth phrases, separately such of action that Reata failed to state сause er, unambigu comprise do clear City for which the could be liable under Tooke, ous waiver of to suit. the Tort Claims Act. Reata amended its City provi at 342. The Charter twice, fail to petition pleadings but its still City’s immunity does not waive the sion immunity. Ac demonstrate a waiver of from suit. See id. ap cordingly, we hold that the court correctly that Reata’s peals determined IV. Conclusion any claims do not fit within waiver of City affirmative Because the asserted immunity under the Tort Claims Act and Reata, monetary claims for relief not entitled to replead. that Reata was not have City does Immunity by to, C. Waiver to, connected germane Reata’s claims Local Code Govеrnment defensive to claims asserted properly Charter any recovery on City, to the extent recovery by those claims will offset City’s immu Reata also claims the the court of City from reverse Reata. We 51.075 nity from suit is waived section the case to appeals’ judgment and remand Code, pro which of the Local Government con- proceedings the trial court for further “may municipality that a vides home-rule ‍‌‌‌​‌​‌‌​​​​​​​​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌‍opinion. sistent with this in plead impleaded and be court.” See § 51.075. How TEX. LOC. GOV’TCODE in filed a concurrence Justice BRISTER ever, for tort claims is waiver and Justice which Justice HECHT Tort Claims Act. governed by the Texas joined. O’NEILL ch. TEX. PRAC. & REM. CODE See CIV. (hold participate 101; Miranda, Justice WILLETT did at 224-25 im- the decision. entity was ing that the

379 a BRISTER, Subject-matter jurisdiction concerns joined by Justice Justice O’NEILL, cases.3 It power court’s over stems HECHT and Justice separation powers, and concurring. the doctrine of keep judiciary from encroach- aims to join judgment, I as Amer- the Court’s belonging to an- subjects properly on ing long government ican held that a law has Subject- government.4 other branch of by filing an waives from suit or cannot be waived jurisdiction matter sepa- affirmative claim in court. I write must be consid- by agreement, conferred rately disagree because I with the State can be sponte, a court sua ered mistaken, and with the this rule is appeаl.5 raised for the first time on partially abrogate that must sov- Court we immunity because the rule is ereign contrast, jurisdiction, by con- Personal jurisdictional “tension” with other rules. A power parties.6 cerns a court’s over Instead, sovereign immunity always has par- judgment against court cannot enter rules jurisdictional had its own set be- into ty who has not been haled court jurisdiction private public cause over service,7 and its writ ex- through proper different. parties simply beyond only tends its borders as far as due cases, parties all whether the are jurisdiction can process allows.8 Personal juris- public private, a court must have voluntarily by appearance,9 or wаived binding judgment. But diction issue untimely objection.10 impliedly by an “^Jurisdiction,” as the United States Su- Throughout history, Texas we have held observed, preme recently Court “is a word “jurisdiction- immunity is many, many, meanings.”1 too Both 11 it as either characterizing al” without but subject-matter jurisdiction personal subject-matter personal jurisdiction. jurisdiction “jurisdictional” are in that a Anderson, contrary, Clayton we court cannot To judgment enter without “juris- held that when the State waived Sovereign immunity them.2 is also dictional,” ways “acquired the trial court filing but in that do not fit neat- subject-mat- ly categories. parties into the other two Env’t, Ltd., 1. 6. See CSR 925 S.W.2d at 594. Steel Co. Better Citizens for 83, 90, 1003, U.S. 118 S.Ct. 140 L.Ed.2d 210 (1998) (internal omitted). Dunn, 833, quotation marks 7. See Wilson v. (Tex.1990). Co., Ruhrgas 2. See Oil AG v. Marathon 583-84, Volkswagen Corp. U.S. 119 S.Ct. World-Wide Wood Link, (1999); son, 286, 292, L.Ed.2d 760 CSR Ltd. v. 100 S.Ct. 444 U.S. (1980). S.W.2d see also L.Ed.2d 490 State, Clayton & Co. v. 62 S.W.2d 107 Jennings, 9. See Hilburn v. Arhaugh Corp.,-U.S.-, 3. See v. & HY -, 126 S.Ct. 163 L.Ed.2d CIV. 120a. 10. See TEX. R. P. Ltd., (2006); 925 S.W.2d at 594. CSR See, e.g., Co. v. Missouri R.R. Pacific Dist., Control 4. See Texas Ass’n Bus. v. Texas Air Navigation Brownsville Bd., 440, (Tex.1993). Lain, 549, (Tex.1970); 852 S.W.2d 444 v. Tex. 814 State 162 579, (1961); W.D. Haden 349 581-82 S.W.2d 74, 838, Dodgen, 158 Tex. 308 S.W.2d 5. See Univ. Texas Sw. Med. Ctr. v. Co. v. Loutzen of Tex., hiser, 351, (1958); (2004). 169 v. Univ. S.W.3d 841 Walsh 140 358 of 380 ”12 Persons,”

ter. of Rights concluding that sover- eign immunity arises from the of nature years In the last seven ad- we have subject sovereign party, not matter immunity sovereign dressed almost exclu- sovereign’s of the case: subject-matter jurisdic- in sively terms of This began approach per tion.13 with a is, Hence that no suit or action can be 1999,14 opinion curiam distin- which brought king, even civil guished a to opiniоn appeared 1988 matters, can ju- because no court have say But opposite.15 acknowledging jurisdiction risdiction over him. For all immunity sovereign implicates sub- implies superiority power: authority of ject-matter jurisdiction does not mean it idle, try to would vain and without an be implicate personal jurisdiction, does not redress; authority and the to sentence Indeed, cases, the earliest too. Texas dat- of a court contemptible, would be unless ing Republic, from the even addressed sov- to command power court had immunity in terms of ereign “amenability” it; who, Finch, says execution of but suit,16 to personal term borrowed for 18 king? shall command the jurisdiction.17 kings, Oncе bereft of earliest Ameri- early cases These Texas were not aber- sovereign can immunity still cases viewed rations; has historical- personal jurisdiction.19 terms of The ly problem considered a primarily been of 81, Federalist Alexander personal jurisdiction. No. Hamilton Blackstorie ad- sovereign immunity personal juris- dressed “The borrowed of language under 993, 1942, 266, McFall, (Tex.Civ.App.-El Laykin 267 S.W.2d 994 Paso v. 830 S.W.2d n. 1 ref'd). 1992, writ) (same). (Tex.App.-Amarillo writ no (em- Clayton, 12. 62 S.W.2d at 110 See, Jarvis, 191, e.g., Kenedy 16. 1 S.W. v. added). phasis 1886); (Tex. Walling, v. Bd. Land Comm’rs of ("[I]t (Tex.1843) Dallam 524 is one of See, e.g., Dep’t 13. Parks Tex. & v. of Wildlife sovereignty essential not attributes of to Miranda, 217, (Tex.2004); 133 S.W.3d private person amenable of a with to the suit Tex.Natural Res. Conservation Comm’n v. IT- ”). out its own ... consent 849, Davy, Dеp’t 74 S.W.3d Garza, (Tex. Transp. v. of See, 157.375(a) e.g„ § Miller, 17. CODE 2002); TEX. FAM. Dep’t Criminal Justice v. of ("While purpose in this state for the sole of compelling through a child the return of Jones, Transp. 14. See Tex. of corpus proceeding, relator habeas is not (Tex.1999) curiam). (per subject process amenable and is not to to civil except jurisdiction of civil court Antonio, San See Davis of pending.”) (empha- court in writ is which the ("We (Tex.1988) S.W.2d do not read 120a(l) added); (provid- P. sis TEX. R. CIV. previous sovereign opinion Duhart [a our object juris- ing special appearances to holding that case] as the trial court property person diction "over subject jurisdiction lacked matter оf the case ground party defendant on that such any judgment plain- and that rendered for the process property amenable issued void.”). been tiff would have Between 1988 added). State”) (emphasis the courts this of Appeals the Seventh Court had suggested sovereign immunity concerned Blackstone, 18. 1 William COMMENTARIES County County both. See Bd. Comm’rs *235. ON THE LAWS OF Dist., ENGLAND Hosp. v. Amarillo Beaver Okl. (Tex.App.-Amarillo n. 2 Nelson, writ) Sovereign ("[Sjovereign generally Im- Caleb no con- Jurisdiction, munity as Personal subject a Doctrine cerns both matter added); personal jurisdiction.”) (emphasis 115 HARV.L.REV.1559

381 evidence, much judgment a share pay in the stating, diction in “It is inherent lim- personal jurisdictional in common with sovereignty nature of not to be amenable Yet, it seems foreign parties. its over to suit of an individual ITS WITHOUT cannot say to Texas courts In Su- awkward CONSENT.”20 the United States units, major Texas preme opinion, first Court’s other “reach” space, necessarily share the same plea to file a or when all Georgia state of refused buildings. that its and sometimes the same appear argument at oral fear immu- appearance sovereign would waive these similarities and differences Given nity.21 doctrine, no come as with each should jurisdictional gov- rules surprise immuni- that the story sovereign The full is that subject- sovereign immunity borrow ty erning concerns about both includes Thus, to neither. personal jurisdiction, but is both but arе identical matter and jurisdiction, subject just subject-matter sover- identical to neither. terms of like matter, immunity may by raised the court government ought eign to whether per- if do not.24 But like compensate particular parties claimants involves even jurisdiction, long Texas law has held policy beyond scope the traditional sonal issues immuni- judicial governmental entity waives proceedings.22 But at the same time, claim.25 incongruity saying ty by filing suit on an affirmative there some that routine tort and contract suits are addressing cases Federal subject beyond the traditional matter of immunity of the states reflect this same simply party the courts because one is a nature, hybrid including еlements of both government employee.23 jurisdiction.26 subject-matter personal rule,

Similarly, pow- ques- concerns about a court’s And like the Texas there is no government er to waive from suit appear, give order the to tion states (“The (emphasis at its earliest THE FEDERALIST NO. 81 trial court must determine original). opportunity whether it has the constitutional ‍‌‌‌​‌​‌‌​​​​​​​​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌‍statutory authority be- to decide case proceed.”), allowing litigation with fore Nelson, (discuss supra 21. See at note 19 Sunnyvale, Mayhew 964 S.W.2d v. Town (2 Dall.) 419, ing Georgia, Chisholm v. 2 U.S. 922, (Tex.1998) (raising ripeness issue (1793)). 1 L.Ed. 440 sponte subject-matter sua as an element of jurisdiction). Univ., Sign 22. See v. Fed. Tex. S. 401, J., (Tex.1997) (Hecht, concurring) Rights, 25. Kinnear v. Tex. Comm’n on Human ("[Njot weigh all the factors that in determin- ing liability the State’s on its contracts can be State, Clayton v. 122 Tex. & Co. judicial proceeding.”). assessed in Snyder, 23. See State 18 S.W. Schacht, Dep't 26. See Wisc. Con. v. state, (1886) ("The plaintiff, as a has 118 S.Ct. 141 L.Ed.2d U.S. right plaintiffs the same as other to institute J., ("In (Kennedy, concurring) cer and maintain actions the district courts respects, states [accorded tain which, upon any under the cause of action of Amendment] the Eleventh bears substan constitution, of the such courts have terms jurisdiction require similarity personal tial jurisdiction, and so force of the ments, it can be waived and courts need since constitution, on such conferred courts sponte. Permitting raise the issue sua stаtutory author- and without reference to any stage at to be raised ization.”). contrast, proceedings, is more consistent regarding as a limit on the federal [it] with (citations subject-matter jurisdiction.”) Compare Parks courts’ Wildlife Miranda, omitted). (Tex.2004) by claiming interplead- court an claim waives from suit is the federal fund,27 claim,28 filing bankruptcy a or right ed one. removing a case to federal court.29 First, founded on sovereign is Thus, jurisdictional rules of sover- governments that will do presumption eign immunity simply cannot be derived citizens, justice by one or to their means subject-matter plugging in the rules of or court, By filing gov- a another.31 suit personal jurisdiction governing private to ernment makes сlear it has chosen thing, one parties and cases. For those (and just pursue justice presumably not im- sovereign rules conflict. And because itself) through litigation, at least munity of but all of includes elements both particular case. neither, general is no rule about there “[cjoercion Second, incompatible ... or apply preempted.

which should sovereignty.”32 with Without some indica- immu- abrogating sovereign Rather than consent, judicial powers of tion of “the nity piecemeal adopting governing rules tribunals, be, they may great however are subject-matter jurisdic- personal either not of a character so transcendent as to wholesale, tiоn we should look to those remedy.”33 But enable them to afford [a] (or guidance, applying rules for them government voluntarily seeks affir- when them) hybrid according purposes of to the courts, it is not mative relief from the peculiar sovereign of im- necessities to cooperation but for the courts coercion munity. precisely This is what the Court adjudicate the matter. considering arguments has done when to Third, sovereign immunity protects the sovereign immunity limit or abolish com- ex- government from the distraction and pletely, looking purposes behind the if could penses that would ensue citizens Considering those guidance.30 doctrine for they government whenever purpоses why the tradi- sue same here shows pleased.34 again, affirmative But when sovereign’s tional rule that a thereto, Barnard, 436, 447-48, way justice it will do in reference 27. See Clark v. 108 U.S. so; 878, (1883). ability do and this is one of that it has 2 S.Ct. 27 L.Ed. 780 brought why can be the reasons no suit 565, Jersey, 329 U.S. 28. See Gardner v. New consent.”); Bor- the state without its 467, 573-75, (1947); 91 L.Ed. 504 67 S.Ct. Houston, 594, (1847); den v. 2 Tex. 611-12 Katz,-U.S. Cmty. see also Cent. Va. Coll. Walling, Comm’rs v. Dallam 524 Bd. Land -,-, S.Ct. 163 L.Ed.2d (Tex.1843). (2006) (holding agreed that States "not any sovereign immunity they assert defense Borden, 32. 2 Tex. at 611. might proceedings brought” have had in bankruptcy). (cited Walling, approval with Dallam 524 Jarvis, Kenedy v. 1 S.W. by this Court in Sys. Lapides Regents 29. See v. Bd. Univ. accord, (Tex.1886)); Snyder, 18 S.W. at Ga., 613, 616, 122 S.Ct. 535 U.S. 110; Republic, 2 Tex. 616 Bates v. (2002). L.Ed.2d 806 Taylor, Hosp. v. See Wichita Falls State Conservation 34. TexasNatural Res. Comm’n 695-96 IT-Dаvy, 74 S.W.3d 1843) ("The (Tex. Walling, Dallam at 525-26 Snyder, 18 S.W. 31. State v. ("It experience ages the wisdom of conclusively pre- is to be sumed, judicial expo- authorizing enlightened statesmen and most in the absence of a statute less given the doctrine that sitors have sanctioned against the in reference to suit matter, state delay just injury or even fully recognizes every would arise from it it, justice than from the denial of to individuals that in its own claim the citizen has claims, immunity than sover- like less brings its own affirmative ment obviously eign inequity. concluded that the distrac- has litigation of is worthwhile expense tion and Thus, rule of limited the traditional particular in that case. all consistent with by appearance waiver is Fourth, immu- protеction sovereign the immunity. It purposes suggests that nity public affords to the fisc jurisdictional with the is not “tension” by filing a claim government a waiver it parties; is sim- governing private rules be limited to that claim’s extent.35 should rule. ply a different sovereign immunity, policy deci- Absent I unresolvable tension Nor do see government spending regarding sions frequent our state- this rule and between juries, not by judges made and would be sovereign immunity must be ments that might be the Legislature.36 That still Legislature in clear waived if, government asserted its case when terms,39 unambiguous for several reasons. claim, sovereign immunity own it waived First, an Legislature has taken while larger and en- as to much counterclaims particular deciding role in which active By filing transactions. suit tirely different against governmental may suits be filed claim, to have government on a consents units,40 role in played it has not the same par- entitlement to a the courts decide its may be filed limiting particular which suits sum, no ticular but more. an affirmative Trying them. to collect Finally, while courts in these cases see the same kinds claim does not raise branches, separation among parties trying to avoid one. concerns as only may sued the State see different Second, may Legislature waive while parts paradoxical of the same tree. This suits, in recent immunity in individual (which three-in-one structure no doubt re- quite rarely.41 it so Given years has done Founders)37 the trinitarian sonated with rapidly business in a press of other requires point the courts at some to insist state, expect unrealistic to growing “[tjhere is not one law for the sover- piecemeal immunity decisions to be made A eign subject.”38 and another for the for collectively. The reasons rather than governments to make a claim allowing rule classes offsetting strictly construing all claims looks waiver whole preventing but life, Founders, liberty, prop- upon trilogy imbecility consequent distraction and Father, trinity government’s being erty involved in continual was as the Christian same, three-in-one; Son, Holy Spirit: harassing at the will or controversies different.”). every cоmmunity.”). caprice of citizen in the but Blum, Co., S.W. 38. v. 92 Tex. 35. v. Oil 141 Tex. Fristoe State Humble & Ref. (1943); (quoting People ‍‌‌‌​‌​‌‌​​​​​​​​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌‍Stephens, v. Snyder, 18 S.W. 169 S.W.2d 707 527, 549). 110; Borden, (1847); N.Y. at 611-12 at Tex. Bates, 2 at 618. See, Hosp. Tay e.g., v. 39. Wichita Falls State lor, (Tex.2003); IT- 106 S.W.3d IT-Davy, ("Subjecting 36. 74 S.W.3d at 854 854; Tex. Med. Davy, 74 S.W.3d at Univ. liability may hamper gov- government to York, Branch at Galveston by shifting functions tax resources ernmental State, Duhart v. purposes away intended toward from their defending paying judgments.”); lawsuits and Bates, at 618. J., (Hecht, IT-Davy, at 862 concurring). Note, Clause, Twenty The Dollars Cf. (2005) ("In an HARV.L.REV. analogy 41. See id. that would have resonated with government of suits are not INDEPENDENT single government unit files a COLUMBUS

same when DISTRICT, single ease. SCHOOL Petitioner, governments bring Finally, when ulti- they through agents do so who must mately authority their from the dеrive agents generally are

Legislature.42 Those FIVE OAKS ACHIEVEMENT immunity from not authorized to waive CENTER, Respondent. liability, or from suit individu- No. 05-0414. they

al But file suit on an cases. when claim, they doing affirmative must be so of Texas. Supreme Court If authorization. the rule legislative with otherwise, gov- it is not clear how a were June assert its own claims. ernment could ever it “well more This Court found settled” years ago governments

than who must follow the same rules as the

file suit

governed: long as the state

It is well settled so laws, enforcing engaged making other discharge function, as a regarded

mental it is to be which

sovereign, prerogatives and has individual citi- appertain

do not

zen; a suitor its but when becomes courts, party or a to a contract with

own citizen, it as applies the same law governs the con-

under like conditions

tracts of an individual.43 voluntarily government enters

When

contract, sovereign immunity it waives suit) to that ex- liability (though not

tent;44 voluntarily government when a

files it waives ex- liability) to that (though

from suit of Dallas

tent as well. Because here, it waived an affirmative claim

filed

immunity from suit to that extent. Univ., Sign Fed. v. Tex. S. City Pub. Serv. 44. Util. Comm’n v.

42. See Pub. Antonio, (Tex. 1997). (Tex. ‍‌‌‌​‌​‌‌​​​​​​​​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌‌‍Bd. San 405-06 2001). Fristoe, S.W. at 999.

Case Details

Case Name: Reata Construction Corp. v. City of Dallas

Court Name: Texas Supreme Court

Date Published: Jun 30, 2006

Citation: 197 S.W.3d 371

Docket Number: 02-1031

Court Abbreviation: Tex.