*1 Conclusion name in files a police found the officer tip. extracted from the matching the one anal- totality of the circumstances In our to have a individual is not shown The to the given great deference ysis, we have Two addresses narcotic criminal record. the warrant. decision to issue magistrate’s for the named individual. are discovered requesting and those recognize We premises of the second placed on the He is legally may not be warrants issuing search and identification by surveillance address decisions legal of recent or abreast trained The residence is photograph. police have cause.” We concerning “probable A person. Gates, of another listed the name which guidelines followed can at garbage duty incursion into the to ensure single it is our makes clear baggie with basis for plastic reveals a had a substantial magistrate the address cause existed. probable affiant- concluding residue shown powder white Here, 238-39, we 103 S.Ct. 2317. “analysis” gar- to be cocaine. The Gates officer’s the four corners of so ensure from cannot open at the curb was bage can affidavit. Even this search warrant police, and including neighbors, the public, the affiant-officer trial court admonished alone, Standing “unwelcome meddlers.” magis- to the presented the affidavit about garbage into a can the one-time intrusion trate. plastic cocaine residue one revealing plastic an tied-off

baggie along empty with overruling The trial court erred justify finding prob- baggie, would point sole suppress. Appellant’s motion to able cause to search 8513 Cornwall. Other of error is sustained. can, garbage residue in the than cocaine are re- of conviction judgments nothing support probability

there is remanded and the cause versed items to be searched for were on that the district court. Here, premises. we do not have anyone had been on the evidence contraband, known

premises and seen place, frequenting

users of narcotics hours, all short

people coming going or automobiles, stops by or other evidence & PONTIKES SATTERFIELD Although nature. Daniel Serrano similar CONSTRUCTION, INC., question premises on the placed Appellant, issued, there day the warrant was probable have cause would INDEPENDENT SCHOOL IRVING him cocaine possession arrest DISTRICT, Appellee. in the trash. residue 05-03-00004-CV. No. residence, no nexus to the tip Texas, Appeals Court examination, appellant’s police file Dallas. premises, and the residue presence on trash plastic bag in the of cocaine Sept. give probable cause did not constitute 12, 2004. Rehearing Jan. Overruled basis to so magistrate a substantial did, If it then the constitutional find. are to be

statutory that citizens guarantees meaning. in their homes have little

secure *2 Hawbaker, Timothy Dwayne

Donald F. Ford, Ford, Matheny, Jeffrey A. &White Nassen, P.C., Dallas, Appellant. Univ., Messer, Lowry, v. Tex. S. Boyle Sign & Fed. Andrew W. comprised

L.L.P., As- 405 doctrine Deatherage, W. Jim & James (1) immunity concepts: distinct sociates, PC, of two Irving, for Appellee. *3 unless (barring a lawsuit from suit FRANCIS, JAMES, Before Justices expressly gives its consent Legislature and LANG. (2) suit), liability (pro- immunity from Legis- judgments from even if the

tection OPINION expressly given its consent lature has suit). governmen- id. Although See by Justice Opinion FRANCIS. entity immunity tal In of contract case this breach citizens, im- private when it contracts District, Independent we Irving School merely by is munity from suit not waived in- Legislature whether the must decide into a contract. See Catalina entering to waive the District’s tended Paso, Dev., 121 County Inc. v. El by enacting 11.151 of the section 704, (Tex.2003); Serv.’s 705 Gen. S.W.3d lan- Because the Texas Education Code. Co., 39 v. Comm’n Little-Tex Insulation in section does not guage used 11.151 (Tex.2001). 591, Instead, ex- 594 S.W.3d waiver, clearly unambiguously indicate required consent to show press dismissing trial we affirm the court’s order immunity from a breach of contract & Pontikes Inc.’s Satterfield Construction County v. has waived. See Travis jurisdiction. claims for want of 246, Inc., 248 Pelzel & Assocs. 77 S.W.3d (Tex.2002). ex- This must be consent lan- unambiguous pressed clear and BACKGROUND 311.034 guage. The District contracted with Satterfield Tex. Ann. Gov’t Code (Vernon Supp.2003); for the construction of a new middle construction, During project school. 248. delays. certain experienced Satterfield trial review novo the We de this lawsuit District alleging filed jurisdiction ruling plea on a to the court’s pay delay failed to and extend damages Tex. from suit. See based on time for in accor- completion project IT- v. Natural Res. Conserv. Comm’n provisions. dance with certain contract (Tex.2002). 849, Davy, 74 S.W.3d The District moved to dismiss the law- Where, here, no evidence there was jurisdiction asserting suit for want of jurisdic to the trial on the presented court response, immune from In Sat- suit. issue, solely pleadings look to the tional we as- petition filed its first amended terfield ju court’s whether the trial to determine Legislature serting the had waived See properly invoked. risdiction section by enacting District’s Aiken, 67 Tarkington Indep. Sch. Dist. v. Code, which 11.151 of the Texas Education 2002, (Tex.App.-Beaumont District to and be sued.” allows the “sue must es pet.). pleadings Satterfield’s granted plea District’s The trial tablish, or to a statute either reference jurisdiction. appeals. Satterfield permission, Legisla express legislative lawsuit, to its

ture’s consent deprive trial court from suit will Discussion jurisdiction. Dep’t immunity protects subject matter Governmental Jones, v. Transp. entities lawsuits for governmental (Tex.1999). determining whether legislative consent. See When damages absent clearly unambigu impleaded any court” city and a ously gen provision stating City waived we charter could “sue erally City’s resolve and be sued” waived the immu- ambiguity favor of nity negligence from its retaining suit. Id. at immunity. See Wichita Falls rejecting claim, subcontractor’s Hosp. Taylor, State we noted that such language merely “speakfs] City’s capacity to sue capaci- and its pleaded Satterfield the “sue and be ty to be sued when has been contained section 11.151 waived.” Id. clearly expresses Legislature’s inten *4 We likewise view 11.151 section as tion to waive the District’s acknowledging capacity District’s to suit in breach of contract actions. We do capacity sue and its to be immu sued once agree. statutory provision The we are nity has been waived. A school district called upon to construe is located in the only powers has those granted by to it education subchapter code under a entitled Legislature. v. See Barber Colorado In “Powers and Duties of Board of Trustees Dist., (Tex. 447, dep. Sch. Independent pro District.” It School 1995). language The sue and be sued vides as follows: merely recognizes ability the District’s to § In 11.151 General utilize legal entity, just the courts as a as (a) independent The trustees of an the remainder of section 11.151 authorizes body school district a corpo- constitute District to property, hold and receive rate and in the name of the district donations, bequests, and other funds. At a may acquire person- and hold real and 11.151(a) minimum, we conclude section is sued, al property, sue and be and ambiguous as to whether it addresses the receive bequests and donations or oth- capability District’s to sue and sued er moneys coming or funds legally entity an or an expression Legis of the into their hands. lature’s intent to waive the District’s im 11.151(a) (Ver- Tex. Ann. munity from suit. Educ.Code required We are non construe the in a statute manner that re Taylor, tains the District’s At least one suggested commentator has language because “sue and be sued” context, originated conclusion, corporate reaching reject law In this we provisions easily these can be read as a Satterfield’s assertion that Missouri Pacif- designation give particular entity a a ic Navigation Railroad Co. v. Brownsville (Tex.1970) District, legal George existence in the courts. C. 453 S.W.2d 812 man- Kraehe, Something “There’s About In Cities”: dates a different result. Missouri Pa- Understanding Proprietary cific, Functions the railway sought indemnity from Municipalities Texas navigation railway’s Governmental district for the Immunity, 35-36 in a wrongful death suit based on a Tech. L.Rev. (2000). fact, In agree. recently We we track agreement” prohibiting “written a City objects reached similar conclusion in district from allowing certain to be Corp., placed Dallas Reata Construction near track. Al- Id. 812-13. (Tex.App.-Dallas though generally acknowledging the dis- filed). Reata, pet. suit, the subcontractor trict’s the court con- language govern- contended the local strued a “sue and in a provision be sued” City “plead ment code that the could creating gen- 1925 statute the district as a person “a by provided Pelzel consent to suit statute eral county against a thereby authorizing railway’s claim not sue claim presented Id. at has navigation person district. 813. unless the com- court and the commissioners support holding, As for its the Missouri neglected court or refused missioners specifically that court noted suits claim.” Pelzel pay part all or had been to be au- against counties held acknowledged Missouri Pacific’s significantly thorized statutes were by stating that “sue be sued” straight forward on the waiver im- less “arguably intent show[s] (1) munity merely issue such as those: immunity” Id. sovereign requiring filing claim before insti- added). But noted were Pelzel also there (2) county tution of in- providing as- support cases to jurors witnesses, Pacific’s to serve as habitants county’s immunity sertion (3) prohibiting the of an issuance exe- held be waived statutes a judgment against county. cution on filing of a claim before insti- requiring The court held the and be “sue *5 Pelzel, tution of suit. Id. at 251. After “quite plain general gives statute and behind Missouri rationale for District consent be sued Pacific’s on an holding, part which was based courts of Texas manner same understanding presentment a statute other defendants.” Our research has immunity from has been called waived first revealed Missouri as the and question. into only Supreme time the Texas Court has directly addressed the a issue of whether Similarly, clear unam- applying the and and “sue be sued” statute constitutes a case, biguous wrongful in a death standard of from More im- waiver suit. supreme court has also concluded portantly, supreme court has since de- Legislature hospital’s did not waive a state from parted logic Missouri Pacific by enacting pa- following in the three decades that deci- per- “a rights provides tient’s bill of which sion. son who has been harmed a violation injunctive may this sue years Pacific, [under statute]

Ten after Missouri relief, Taylor, or 106 damages both.” See supreme any court held that waiver Taylor at 700. Both Pelzel and S.W.3d expressed by from suit must be of clear unam- examples listed several and Legislature unambiguous clear and State, biguous expressions Legislature’s of the language. Duhart v. 610 S.W.2d (Tex.1980). Tay- intent to waive 740, suit. 742 That Pelzel, lor, 6; 77 at 697 n. 106 S.W.3d consistently been reaffirmed. See Notably, at 249. neither of these S.W.3d 311.034; Taylor, 106 Gov’t Code Ann. and 696; Pelzel, supreme presented court cases “sue 248; at at 77 S.W.3d S.W.3d example an of a clear 854; be sued” statute as IT-Davy, Sign, 74 at S.W.3d Fed. 951 unambiguous and 405; waiver City v. La Porte Bar S.W.2d 288, suit. field, 898 291 S.W.2d recently, acknowledge appellate More in a We several construction contract us, summarily concluded “sue action similar to the one before courts have Legisla language expresses and unam- be applied the clear general ture’s consent suit and biguous presentment standard hold immunity from suit county’s immunity governmental entity’s did statute not waive See, holding. suit. 77 249. based on Missouri S.W.3d Pacific’s Midland, e.g., Goerlitz City v. 101 contract. We are aware of no case that 573, 2003, S.W.3d 577 (Tex.App.-El Paso has made such a distinction. Cases have filed) pet. (city provides city charter routinely cited both tort and contract sued); may sue and Hosp. be Tarrant Co. causes of action for propositions various (Tex. 434, v. Henry, Dist. 52 S.W.3d relating to legislative waivers of (health App.-Fort 2001, pet.) Worth no from suit. The fundamental in- concepts, safety provides code the board manag cluding requirement un- clear and ers of a hospital may district statute sue ambiguous language, have applied sued); Enter., and be v. Welch Coca-Cola equally types to both of actions. Satter- Inc., 532, (Tex.App.-Tyler S.W.3d field has not advanced reason dis- 2000, withdrawn) (education pet. pro code tinguish sounding between cases in tort vides the school district may trustees sue sounding those contract. sued); and be Bates v. Tex. State Tech. has repeatedly demon- Coll., 821, 827 (Tex.App.-Waco strated that it knows how to waive sover- denied) (education 1998, pet. provides code eign immunity in unambiguous clear and sued); college board sue Alamo language. Taub Harris Co. Flood Con- Comm. Coll. Obayashi Corp., Dist. v. Dist., 406, trol 410 (Tex.App.- 745, (Tex.App.-San 747-48 Antonio Hous. pet.). [1st Dist.] Because denied) (education pet. provides code section 11.151 of the education code does independent school district trustees can clearly unambiguously im- sued); sue or be Indep. Dillard v. Austin munity from suit for breach of contract Dist., Sch. 594 (Tex.App. *6 districts, against independent claims school denied) 1991, Austin (op. writ on reh’g) we affirm trial judgment court’s dis- (education provides code school district missing Satterfield’s claims for want of sued); may trustees sue and be v. Fazekas jurisdiction. Houston, 299, Univ. 565 S.W.2d 302 of (Tex.Civ.App.-Houston 1978, [1st Dist.] n.r.e) LANG, (education dissenting. J.

writ refd provides code University of Houston board sue and Dissenting Opinion by Justice LANG. sued). cases, however, None of these addresses or even acknowledges appeal The issue this is whether the changes that place have taken the law Legislature, by including “sue and be relating to waiver of language outlining a statute issues since Missouri powers and duties of the board of trustees Pacific. district, independent of an school waived

Applying the principles well-settled governmental the school district’s immuni- Pacific, evolved since Missouri we hold ty to a suit of for breach contract. The that because section 11.151 is not a clear majority today affirms the trial court’s rul- unambiguous of waiver the District’s ing Irving Independent School Dis- the trial court did not (“the District”) trict err immune suit dismissing Satterfield’s breach of on claims that it contract breached a construction jurisdiction. claims for want of conclusion, contract reaching our with Satterfield & Pontikes Con- necessarily we struction, reject I private litigant. respectfully Satterfield’s contention that whether disagree majority’s “sue or opinion, be sued” with the which constitutes unambiguous relating clear and sets forth of the waiver of its view law depends underly- governmental immunity on whether the from suit on con- ing claims asserted sound tort or in upon my reading tract claims. Based of

69 Court, except Tort Supreme negligent acts to extent the the decisions of Texas I ruling. immunity); I court’s would reverse trial Act see waives that Claims respectfully dissent. Shaunessy, Sovereign generally Michael Immunity the Extent the Waiver I am not in accord with the of

Because of Immunity By the Texas Tort Created reading majority in its or on decision Baylor (2001). Act, 87 decision, 53 Claims supports of the case law which L.Rev. it re appropriate, I believe it is the dis- others describe the doctrine as during Still views, relief, law my cussion of to chronicle the injunctive equitable see lates pertinent governmental 360, 144 190 Harrington, v. Tex. Cobb this is of- Accordingly, following case. (1945) (suit 709, declaratory 712 for S.W.2d for fered consideration. v. Tex. Med. judgment); Bagg Univ. Branch, 582, (Tex.App. 584-85 The Roots of Governmental n.r.e.) 1987,writ ref d [14th Dist.] -Houston Immunity in Texas (suit relief), injunctive or as relates immunity1 was Sovereign generated claims, see Tex. Crv. premises law, legislative from the common en 101.022; § Ann. also & see PRAC. Rem.Code Hosner 1 Tex. DeYoung, actment. See v. Able, Dep’t Transp. 35 Tex. v. S.W.3d (1847); 764, 769 Bd. Land Comm’rs (Tex.2000). 608, Finally, 612 and most (Tex. 524, Walling, Dallam 1843 WL 3919 our considerations in this important Martin, 1843); City see also Amarillo v. case, have defined the nature courts Over brought claims respecting time, doctrine of has been the State for private citizens divided into several distinct areas of law. Pac. R.R. Co. breach contract. Mo. im example, For some law case discusses Dist., Navigation v. Brownsville See, munity general in a Hos e.g., sense. (Tex.1970); see also Cata S.W.2d ner, 769; Comp. Tex. Worker’s Dev., Paso, 111 County El lina Inc. v. Garcia, (Tex. Comm’n v. (Tex. 2003); Tex. A M at 155 & *7 1993), App.-San Antonio rev’d other Lawson, Univ.-Kingsville v. 87 S.W.3d (1995) grounds, (referring S.W.2d 893 504 518, (Tex.2002); County v. Pel 521 Travis generally concept immunity to the Inc., Assocs., 246, 248 & 77 S.W.3d zel principle king founded on the can “the (Tex.2002); Natural Res. Conserva Tex. wrong”). do no statutes and cases Other 849, IT-Davy, 74 tion Comm’n v. S.W.3d immunity exclusively deal it relates as (Tex.2002); Comm’n v. 854 Gen. Servs. to tort claims. See Civ. PRAC. & Rem. Co., 591, 39 S.W.3d Little-Tex Insulation (Vernon 101.021 Supp.2003) Code Ann. Univ., (Tex.2001); Sign Fed. v. Tex. S. (the 594 Act”); “Texas Tort Claims see also 401, Of Dallas, 578, 951 S.W.2d 405 v. City Shade 819 S.W.2d writ) course, litigation governmen in the 1991, area (Tex.App.-Dallas (gov 582 no enjoys sovereign immunity for its tal described above defined ernment immunity” protects political appears "governmental terms 1. It that courts often use the counties, State, immunity” "governmental im- "sovereign including and subdivisions of munity” interchangeably. Corpus The Christi cities, general- I will districts. Id. school appeals recently court of noted the distinction alleged immunity as ly in this case refer 208, County Hoff, Nueces However, authority is governmental. if case 2003, (Tex.App.-Corpus 211 n. 3 Christi "sovereign,” I will cited that uses the term h.). pet. “Sovereign immunity” to the refers terminology. use court's liability, while State’s from suit 70

the breadth depth District, of the immunity as ville Navigation 453 S.W.2d 812 well (Tex.1970), as the waiver of such controlling authority and that The District is not immune from suit. Governmental as to contracts I respectfully suggest the effect of encompasses First, two distinct concepts. the majority’s decision is to treat the deci- the State retains immunity from un- sion Missouri ifas it had been Pacific consent, less legislative there exists even by overruled stating that “the supreme liability when the State’s disputed. is not departed has since logic Fed. Sign, 951 (citing S.W.2d Mo. the three decades fol- R.R., 813). Pac. The State lowing that decision.” Contrary to the expressly must give its consent to be sued view, majority’s I believe that the Texas “by clear unambiguous language,” and Supreme carefully Court has protected such consent by statute or and described the continued applicability legislative resolution. Id. at 405 (citing of Missouri Pacific. York, Univ. Tex. Med. Branch v. A. Missouri Pacific (Tex.1994); Duhart v. State, (Tex.1980)). supreme court issued its opinion succinct in Missouri The concept second distinct is that the Pacific. case arose when brakeman for Missouri State retains liability even Pacific Railroad died after being knocked though Legislature may granted have from a train ladder a crane that had consent to the suit. (citing Id. Mo. Pac. been left too close to the track. The R.R., such, 453 S.W.2d at As brakeman’s beneficiaries sued Missouri State neither creates nor admits Pacific, which filed a cross-action in- by granting permission to be sued. demnity against the Brownsville Naviga- “However, contracts, when the State tion District. Missouri Pacific claimed the State is liable on contracts made for its navigation district had entered into a con- benefit if private it were a person.” Id. tract with Missouri Pacific where the dis- Thus, recognized court has agreed trict not to allow construction or that when the State contracts with private placement any obstruction which would citizens, it liability. violate regulation law or respecting Yet, the issue of whether safety clearance or margins vicinity has waived the State’s of railroad tracks. trial court sus- on the contract is litigated. often Id. at tained the plea jurisdiction district’s 405-06; Dev., see also Catalina *8 on grounds the that the district was a 155; Lawson, S.W.3d at 87 S.W.3d at 520- subdivision of the and that State consent 21; Pelzel, 248; at IT-Davy, to being sued had not given. The 854; Little-Tex, S.W.3d at 39 S.W.3d at court of civil appeals affirmed. Mo. Pac. course, 594. Of precise it is this issue of R.R., 453 S.W.2d at 813. whether The District is immune from suit subject that is the appeal the before this supreme The court noted that the navi- Court. gation governed by provision district was provided

of a 1925 act that as follows: “All The Missouri Pacific Case and the navigation districts established under this Sign Progeny Federal Act may, by through navigation the and majority rejects argu- commissioners, Satterfield’s and canal sue and be sued ment that the supreme court’s decision in in all courts of this State the name of Missouri Railroad district, Co. Browns- such navigation and all courts Pacific cases immunity from suit. The judicial shall take notice the waiver this State out. bear this Id. that Missouri (empha- of all districts.” cite establishment Pacific added). At issue was whether the sis Sign 1. Federal “sue sued” a waiver of phrase and be immunity from suit. The the district’s citing case Missouri The first Pacific “In quite unequivocally: court concluded respecting which dealt with navigation opinion [the statute] our district Sign claim was Federal breach of contract general plain gives and consent quite is for University, 951 S.W.2d v. Texas Southern the courts of Texas District be sued first court supreme same as other defendants.” the manner separate concepts of immuni- the discussed added). holding, In so the Id. liability. and ty from suit rejected argument that the district’s suit, In its discussion clearly expressed other statutes more may con- court reaffirmed that the State consent to Id. More Legislature’s suit. legislative sent either statute recently, court recalled that resolution, legislative but event Pacific, it “held in Missouri that unambigu- and consent must be “clear Navigational provided statute at 405. Later in language.” ous Id. met District could ‘sue be sued’ briefly Mis- opinion, the court discussed permission legislative requirement.” See souri that case’s summarized Pacific Sign, 951 at Fed. establishing that “sue and be holding as Sign Progeny B. The Federal legislative per- language sued” “met the (citing requirement.” mission delivery of its Since Missouri Pacif- R.R., This Mo. Pac. thirty-three ago, years ic decision over in the court’s conclu- points led three only case supreme court has cited the (1) when the State contracts sion: times. eight These frame doc- cases citizens, only private governmental immunity respecting trine of (2) liability; legislative consent is still against the State breach-of-con- suits for required private in order for a citizen However, by private tract claims citizens.2 contract sue the State a breach of cases after decided Missouri Pacific claim; (3) contracting the act of alone containing did not address statutes “sue immunity from does not waive the State’s language. Accordingly, be sued” Mis- Applying id. suit. See law subsisting, souri authoritative Pacific case, facts of the the court determined proposition case law which stands for the litigant in the Sign, private that “sue Federal and be satisfies case, permission to sue legislative permission requirement for did not receive criticizing of an eight citing cases dissent the court’s allowance 2. Three Missouri Pa present attorney’s are not relevant to the discussion in a suit declara award for fees cific of waiver of par tory brought by judgment home school Department Transportation v. cited in Texas providers. curriculum Id. at ents and *9 Jones, (Tex. 1999), a 8 S.W.3d 636 in discus (Gonzalez, J., Guaranty dissenting). Finally, immunity from sion of difference between Armstrong, Corp. v. 529 Petroleum liability. immunity from Id. at 638. suit and (Tex. 1980), support cited Missouri in Pacific issue the court in Jones was before water is a conclusion that a district properly was whether from suit authority political to enter subdivision with challenged plea jurisdiction. in a are into Id. at 530. These cases a lease. Id. Education court held it was. In Texas discussion of Missouri omitted from the above (Tex.1995), Leeper, Agency v. 893 S.W.2d 432 Sign progeny. and the Federal Pacific his Justice Gonzalez cited Missouri in Pacific University, expressly Texas Southern a state institu- be sued’ waived the im- State’s Therefore, tion. Id. the court munity (citing affirmed the from suit.” Id. Mo. Pac. appeals’s holding R.R., court of that sovereign at The Missouri immunity precluded however, suit. holding, did not answer Pacific the issue in presented Sign Federal Two in Federal Sign statements seemed whether waived its State holding. to limit the court’s See L. Kath- by from simply suit for breach of contract Pearce, Cunningham erine Tara D. & Con- entering into Id. the contract. tracting Daring With the State: The Five(cid:127) —The Heel Sovereign Achilles’ Im- 2. Little-Tex munity?, 31 St. L.J. MaRy’s (1999). later, First, years Almost four majority footnote one opinion expressly limited the court holding opinion issued its General Ser- it, stating, the facts before “We do not vices Commission Little-Tex Insula- Co., attempt Inc., this issue decide other tion circumstances other than one before us question At issue was the court left today. other may There circumstances open Sign: in Federal whether the State where may the State waive its may immunity by waive conduct other by simply conduct executing other than than at simply executing contract. Id. always contract so not that it is immune opinion actually 593. The involved two Sign, when it contracts.” Fed. separate general cases. The first was a added). 1 (emphasis S.W.2d at n. University contractor Texas A & M suing Second, concurrence, Justice Hecht’s additionally expenses incurred under justices joined, which three attempt- other construction contract. Id. at 594. The toed make clear that the court’s holding dispute per- second involved a over the was a narrow one: the State does not formance under a contract an asbestos- waive suit for breach from removing company the General Ser- contract, simply by entering into the con- project vices when the Commission tract, party before the other tenders thirty percent private Id. Both complete. full (Hecht, J., performance. See id. 412-13 litigants the act of contract- conceded that (‘We concurring) attempt do not to decide ing immu- alone did not waive the State’s hypotheticals today, they such but sug- do nity argued both from but gest immunity by waive State immunity by accepting State had waived simply conduct executing other than benefits under the contract. Id. contract, always so that it immune Thus, cited plaintiffs Sign’s both Federal added)). from contract suits.” footnote one and Hecht’s concur- Justice arguments rence to their that the support Enoch, along Justice Spec- Justices only had held the State did not Abbott, tor and holding dissented waive simply enter- in Federal Sign. suggested The dissent ing into the but contract their approach sovereign immunity best done something cases the State had more that the State both i.e., immunity, they accepted immunity from suit when it contract. Id. The court under the private party. enters into a contract with a benefits (Enoch, J., only cited once in its dis- at 417 dissenting). As to concept that Pacific, governmen- cussion about the in Missouri the dis- immunity encompassed separate tal sent noted that established that a case *10 “ immunity enabling agency principles or from statute a state ‘sue added). Enoch (citing Justice dissent- from suit. Id. Mo. Pac. 813). ed, R.R., arguing that the State again once at liability and its from both recognized that the The Little-Tex court agencies to en- it authorizes its suit when Sign in have might Federal (Enoch, at 604 into contracts. See id. ter argu- for opened plaintiffs’ the door the J., dissenting). However, again the court once ments. Id. IT-Davy 3. immuni- held that the State was entitled to ty holding at This was from suit. Id. 598. immunity case governmental The next in 1999 article premised passage on the Texas involving breach contract was Code, 2260 of Texas Government which the Natural Resource Conservation Commis suit sovereign retained (Tex. IT-Davy, sion certain breach-of-contract claims but over 2002). case, general that contractor pro- for an provided which administrative incurred agency expenses a state for sued cedure to resolve those claims. See a hazardous waste site cleaning Tex (Vernon §§ 2260.001-.108 dispute was no that Houston. There Ann. Gov’t Code chapter plaintiffs argued Both that fully performed under contractor apply did not because the State’s Rather, dispute was over contract. Thus, immunity. obtain- conduct waived adjustments” provided for “equitable necessary. not ing legislative consent was after the contractor claimed the contract Little-Tex, court 39 S.W.3d at 596. The expenses and he had incurred additional rejected argument, stating, this are stemming materially “[W]e dif profits lost impute not in this case to knowl- inclined at 851. One ferent site conditions. Id. edge Legislature of decisions estab- arguments, the contractor’s based waiver-by-conduct lishing exception majority’s and Justice footnote one its when the made Sign, in Federal was Hecht’s concurrence through intent clear the words it choose its immu agency that the state had waived in Chapter 2260.” Id. at by accepting [sic] 597. benefits nity fully “there one court further stated that is but The court Id. at 856. under contract. route to for refusing the courthouse breach-of-con- again rejected argument, once State, against tract claims and that waiver-by-conduct excep “fashion ... a through Legislature.” route is Id. suit tion in breach-of-contract ulti The court the State.” Id. ultimate the State mately rejected each of the contractor’s not its does waive breach agency held the state arguments and of the by accepting contract the benefits immunity. governmental was entitled to Therefore, contract. Little-Tex cited Id. at 860. Sign, decision added to Federal and was times, support both in only two not that the State does clear afterwards Legislature’s it is sole proposition in a breach of sovereign abrogate or province to waive (1) into simply entering case contract Mo. (citing id. at (2) contract, ben- accepting some 813-14). R.R., Pac. However, the the contract. efits under Hecht, joined by “Ab- Chief Justice carefully noted in Little-Tex: Justice Jefferson, sue, a Phillips and Justices Owen special statutory sent consent result, in the but refused pursue concurred party a breach-of-contract majority join language” Chapter “broad participating claim without that seemed to indicate opinion Id. at 598 process.” 2260’s administrative *11 74 code,

State is immune from suit the local always government absent which provides (Hecht, legislative J., Id. at the procedure presenting consent. claims concurring). against county. Justice Hecht’s concurrence See Tex. Local Gov’t (Vernon § acknowledged open he had left Supp.2003). that 89.004 Code Ann. possibility Sign county claim, After pay Federal that the situa- refused to might court, tion in that case have been Pelzel filed suit in district differ- which ent if University county’s plea jurisdiction. Texas Southern had ac- denied the Pelzel, knowledged Sign fully that Federal 77 S.W.3d at 247. The court of complied contract appeals grounds, with the but refused to affirmed two (1) pay agreed See id. that price. (citing county Fed. waived (2) (Hecht, J., Sign, conduct, S.W.2d at con- its section 89.004 curring)). explained right Justice Hecht conferred on Pelzel to sue the “hypothetical the Federal Sign supposed county after Pelzel its claim presented government agency chiseled a con- commissioners court and that claim just rejected. tractor get away County because could Travis Pelzel Nevertheless, Assocs., Inc., (Tex. doing so.” Id. the con- & rev’d, curring opinion App.-Austin 2000), that it stated did not an- 77 S.W.3d 246 (Tex.2002). question Sign swer the in Federal and did not need to it in IT-Davy answer because Section 89.004 provided per- “[a] both “ordinary involved contract dis- son may not sue on a claim putes.” IT-Davy, S.W.3d at 861 county person presented unless the (Hecht, J., concurring). Finally, Justice the claim to the commissioners court and dissented, again Enoch arguing that neglected commissioners court has State waives from liability pay part refused to all or of the claim.” and suit when it enters into a contract. 89.004(a). § Tex. Ann. Local Gov’t Code J., (Enoch, Id. at dissenting). Because this was Pelzel’s lone basis for Associates,

4. statutory immunity, Pelzel & Inc. waiver sole is- sue court on statutory before the The next breach-of-contract case involv- Legislature, waiver was whether ing waiver of County Travis 89.004, through clearly section and unam- Associates, Inc., v. Pelzel & 77 S.W.3d 246 biguously county’s immunity waived the case, County In that Travis from suit. 77 S.W.3d at 248-49. contracted with Pelzel to construct an of- The court not. held it did 249. building. substantially fice complet- Pelzel First, ed the building, county accepted the court section stated and occupied building thereafter. 89.004 “stood in contrast stark other county paid price, contract minus statutes that contain which does delay provided clearly for by unambiguously sovereign costs $5500 damages suit,” contract’s such liquidated clause. Pel- as the Texas zel, $130,000, Act,3 owed Tort claiming Proper- it was over Claims the Private Real Act,4 presented county ty Rights its claim to the commis- Preservation and the Whis- Instead, sioner’s court pursuant county section 89.004 of tleblower Act.5 Id. (Vernon § 3. See Tex. Civ. 5. See 554.0035 & Rem.Code Peac. Ann. Gov’t Code Ann. 101.025(a) (Vernon 1997). § Supp.2002). 2007.004(a) (Ver- See Tex. Gov't Code Ann non *12 Pacific, held that a a In we presentment “merely statute establishes Missouri Second, navigation applicable to dis- Id. statute precedent condition to suit.” gives general quite plain “is and the tricts the stated that its construction of court sued in the consent for District be precedent sup- a statute as condition The stated of Texas.” statute courts ported by purpose, the which statute’s “may, ‘by navigation that districts a notify court of commissioners and navigation canal through and inves- opportunity claim and afford it an commissioners, in all and be sued sue Id. tigate and settle the claim. Then in of this the name courts of State its also com- court stated that construction district, navigation and all courts such ported history. The the statute’s statute, judicial of take notice original this State shall quoted court which ” of all districts.’ of the establishment language. and be contained “sue argument the district’s response to original read as follows: statute clearly had more that other statutes by brought against any All suits or expressed we noted consent state, be the counties this shah against have counties been “suits brought in the name of by held be authorized statutes that county [naming county], and of a claim simply require filing sued, may they that name sue and be of suit.” before institution plead impleaded, be defend omitted). (citations Distinguish- in defended, be court of record or at 251 Id. place justice ad- ing other where be the statute Missouri Pacific statute, Provided, however, ministered: the court county presentment sued, stated, county shall be unless “But Missouri involved Pacific upon claim which suit is shall than the in this case founded different statute one statute, presented have first to the coun- cumnt ver- and that unlike the here, allowance, ty court for and such court ‘sue and sion the statute contained added). have au- neglected (emphasis shall or refused to Id. language.” be sued’ Then, dit and allow the it had found no same. the court noted to support cases the Missouri dicta Pacific (quoting May See id. at 249-50 Act of statutes, “those that that other such as Leg., Digest, 1st. Paschal’s claim simply require filing before (amended 1879) added)). suit,” less expressed clear institution The court the Legislature noted “sue than inclusion of consent to suit by omitting amended statute (referring to language. Id. Mo. be sued” county all language before “no shall R.R., 453 S.W.2d at Pac. sued....” See The court then id. 250. Finally, rejected the the Pelzel court referred to when it stat- Missouri Pacific county ed, separate issue whether the years ago, “Thus well over hundred conduct, its waived only language deleted the citing IT-Davy. 251- opinion immunity, sug- arguably waiving sovereign on the Enoch dissented Justice preserve coun- gesting that intended to its immu- county waived grounds that Id. (emphasis ties’ from suit.” added). nity by entering into the contract stat- would not have reached ed he court opinion, Later the Pelzel (Enoch, J., issue. Id. at 253 presentment in some detail. discussed Missouri Pacific dissenting). summarized its 1970 court sentences, 5. Lawson which state: three The most recent in an opinion ordinary breach-of-con- Lawson, to cite in the immunity tract case.” 87 S.W.3d at 524 *13 A University- context was Texas & M J., (Rodriguez, dissenting). The dissent (Tex. Lawson, Kingsville v. 87 S.W.3d 518 Sign, IT-Davy, cited Federal and Pelzel in 2002). The case breach involved the of a support argument of its that the answer to ” agreement settlement that Lawson and the question “decidedly ‘yes.’ university following had entered Lawson’s By 6. The Law Crafted the Federal suit over violation of the Whistleblower Sign Progeny Act.6 The Austin court of appeals had held immunity by the State waived its ac stemming cases from Missouri Pa- cepting some the benefits of a contract Sign and Federal have established a cific refusing pay and then to those for benefits. immunity set of for rules waiver of Lawson, 211, 214 See 28 S.W.3d (Tex.App. First, breach-of-contract context. (Tex. 2000), aff'd, Austin 87 518 State from immunity liability affirmed. when it with a private contracts citizen. Lawson, 87 S.W.3d at 523. Second, See 405. Sign, Fed. S.W.2d at plurality opinion, Justice Hecht cit- not State does waive its first, ed Missouri two times: suit into a simply entering contract. proposition sovereign Third, See does id. at 408. the State not encompasses separate principles of im- waive its from suit when it ac- munity from cepts of the of a contract. some benefits suit; second, that, for the statement Little-Tex, Fourth, See 39 S.W.3d at 597. claims, Legis- “For of contract breach it appears the State will not waive immuni- lature some in- has waived ty private from suit even when the citizen at stances but all.” See 520 n. id. fully contract performed under the plurality’s holding n. 21. The was that accepted resulting State has bene- “when a governmental entity exposed is However, it fits. seems reasonable to as- suit of a immunity, because waiver it sume that the State will not be allowed to nullify by settling cannot that waiver performance “chisel” a contractor after full agreement claim with an on which it can- just “get away because State could not be Id. at sued.” 521. Justice Enoch IT-Davy, with it.” at See concurring opinion, filed a which he (Hecht, J., Finally, if concurring). the Legislature, by maintained that autho- agreement State enters into settlement rizing agencies state into enter con- stemming from lawsuit where tracts, expressly sovereign waived their waived, from suit has been the waiver will (Enoch, J., immunity. concur- separate agree- extend to the settlement ring). Lawson, ment contract. See 87 S.W.3d at argued The dissent a suit enforce 520. agreement a separate settlement is course, considering Of the cases in the breach-of-contract action. id. at 524 progeny, important Federal J., Sign (Rodriguez, (citing dissenting) Mantas recognize that all but Pelzel involved Appeals, v. Court 925 S.W.2d Fifth (Tex.1996)). such, claims that the State has waived its immu- 658-59 As dissent nity by implication, would have framed the issue Lawson as i.e. the “whether the State in a sovereign assert State’s conduct resulted waiver of See Tex. Gov't Code Ann. 6. 554.0035. Supreme of the Texas Court. county the decisions present- Pelzel held the See, County v. Trammel’s e.g., Lubbock merely “a condition

ment statute described Bonds, 580, 585 Bail 80 S.W.3d immu- Lubbock precedent to suit.” It did not waive (“It (Tex.2002) of a is not the function nity from suit. modify abrogate or appeals court of “only lan- The court reasoned that That function lies precedent. established sovereign immuni- guage arguably waiving Court.”); i.e., Supreme] solely with ty,” language, [the “sue and be sued” Lofton 384, 386 Corp., Legisla- Tex. Brine from the statute deleted *14 (Tex.1989) (courts must follow Yet, appeals of years ago. Id. at 250. ture over pronouncements); court’s stated, supreme the the court steered previously as McCain, 871, 875 Swilley v. a carefully to avoid declaration that “sue (Tex.1964)(same). was insufficient to language and be sued” requirement language the that be meet that Pa- point To illustrate its Missouri unambiguous clear and to affect a waiver longer authority, ma- good is the cific in con- of from suit a contract which reaffirm jority cites several cases text. supreme court’s insistence that waiver the expressed must of be Missouri Pacific As It Relates unambiguous agree I by clear and waiver. Case This a to how legal proposition with the as A. Missouri Pacific Stands As Con- Yet, that expressed. prop- must be waiver trolling Law ques- form the for does not basis osition of tioning the soundness Missouri court Having analyzed supreme the Pacific. all, in Mis- supreme After the court stated Pacific, I cases that have cited Missouri that the “sue and be sued” souri majority’s turn that now the statements Pacific “quite plain gives gener- language was squeezing any would have the of effect ” for sued. Mo. al consent the State be viability continued from the Missouri Pa- R.R., at 813 Pac. The majority decision. believes that cific added). the use of supreme court’s supreme departed court has “since description in of “quite plain” term its logic in from the of Missouri Pacific using the “sue and Legislature’s waiver following three decades that decision.” certainly applies virtual- language sued” meaning of is that The clear this statement us. ly language in the case before identical prece- is Missouri not effective Pacific disagree. dent. I Next, majority pro- quotes Pelzel as its logic viding support from the for conclusion “departing Far from of Pacific, “which in rationale behind Missouri following the case the three decades understanding decision,” on an part court has cited was based supreme immuni- presentment a statute waived eight and has nev- Missouri times Pacific suit,” ques- into ty of has been called once from the er wavered soundness However, Instead, tion. Pelzel and its reference holding. court continues to only should be described an undiminished Missouri cite Missouri as Pacific Pacific as between the stat- making of the rule of law on distinction part tapestry of Pelzel, i.e., presentment of claims immunity, especially as to ute governmental lan- “sue and be sued” governmental from statute without waivers short, in the Missouri guage, In contract cases. Pacific i.e., overruled, case, delineating powers it a statute is not Pacific navigation commissioners with A is district appeals the law. court bound language. suit, just “sue be sued” buy it could and sell real only described the Missouri See Having adopted estate. id.7 the com- views, discussion county statutes as “dicta.” majority mentator’s cites the That discussion in Pelzel does not diminish recent decision this in City Court unequivocal the court’s decision that Corp., “sue Dallas Reata Construction and be language navigation sued” (Tex.App.-Dallas S.W.3d 392 pet. filed), district necessary statute constituted the as cause to determine that the “sue worthy Pelzel, It waiver. of note that in language and be sued” in the case before absence of “sue and be us is insufficient to waive to suit. county presentment stat- Reata, city granted a license to a which actually gave support ute general contractor installation majority’s conclusion that the optic fiber cable conduit in downtown Dal- waived 77 las. The contractor subcontracted the *15 at S.W.3d 251. drilling work to Reata Construction. Dur- 2. “Sue and Be Sued” Does ing ruptured Not drilling, the Reata a water Capacity main, Refer To the State’s To Sue in which resulted substantial flood- ing of some property. downtown The my In addition to differences with the Reata, property owner sued Reata and majority respecting interpretation the of against filed a third-party city action the Missouri and the Federal Sign Pacific that arguing city negligent the had been progeny, I respectfully disagree relative to (1) plotting improperly mapping the meaning the of the words “sue and be of location the main when it was water sued” as in used the relevant statutes. (2) 1948, improperly constructed in and majority The holds meaning the of identifying or water main in marking the language “sue and be sued” in statutes response request to Reata’s in 2000. The sue, entity’s describes an to capacity rath- issue before this Court whether the was er than immunity. as a waiver of City’s immunity had been waived so that majority the meaning finds of “sue and be proceed against Reata could with its claims in a law review discussion. city. Accordingly, the Id. at the bulk 394. George Kraehe, C. Something “There’s opinion of the under the concerns waiver Understanding About Cities”: Proprie- Tort Reata’s claims Claims Act because tary Municipalities Functions Texas against city the were all based in tort. Immunity, and Governmental 32 1, (2000). 35-36 The com- portion opinion the rele- Reata Tech L.Rev. argues mentator that “sue and be sued” is vant to the in this case involved analysis nothing than more an acknowledgment by city negli- Reata’s claims that the had been Legislature entity 1948, the that the gent passage described in in before the 1970 a particular statute a corporate-type argument has the Tort Claims Act. For its existence, i.e., legal in appropriate Legislature expressly had waived circumstances, the entity party city’s can be a pointed Reata Although 7. Supreme commentator does acknowl- four Texas Court cases issued since above, edge Pacific, he clarify Missouri de- that time. As stated these cases only scribes it as first and time and Texas enhance the effect of Supreme statutory Court determined that “sue and the rule for waiver from suit in Lawson, language clearly unambiguously be sued” and breach-of-contract cases. See 520-21; 248; waived from suit. at Because arti- S.W.3d 77 S.W.3d at 854; Little-Tex, published IT-Davy, cle author not 74 S.W.3d at reasoning able include from at at least 594. suits (1) and contract against suits the State government 51.075 of the local section See, Sign, 951 e.g., Fed. code, against munici- the State. which stated that “[t]he (mod (Enoch, J., dissenting) at 417 pality may plead and impleaded be (2) immunity, suits court,” charter, justification for city’s which ern deplete would resources city power “to the State stated the had the sue necessary to tax funds implead implead- treasury be sued” and “to applicable is not (citing operate government, id. all courts.” See at ed (Ver- because § Ann. context 51.075 breach-of-contract Tex. Local Gov’t Code City II, funds 1999); appropriates sufficient CHARTER ch. non Dallas (3) 1(2), obligations con- to meet the State’s contractual (Aug.1999)). This Court Int'l, advance); Inc. v. see also provisions spoke that the issue Green cluded State, (Tex.App.-Aus city’s capacity sue when dism’d) (Kidd, J., dissenting) waived, them- tin writ provisions but the (“In age sophisticated com expressly this modern selves did Reata, merce, why should the State be accorded law unequal position regard an under the majori- respectfully disagree I obligations? contractual There ing mutual ty’s in this case for reliance on Reata if the chose to can be no doubt that State First, a tort several reasons. Reata is contract, would on the the State sue Green law, entirely separate body with an case *16 suit.”). to impediment face applicable which is distinct that to Second, in mak majority opinion importantly, cases. The and most contract ad- be ing dresses its view that this difference lacks its statement that “sue and sued” sue, states, to Rea- goes only capacity it to importance language when “We are aware distinguish ta no case that has made such distinc- does not Pacific’s However, I that “sue and be sued” tion.” believe the distinction immunity from suit. Reata plainly between tort and contract as it relates to However, governmental immunity cannot be over- does not cite Missouri Pacific. earlier, City stated. As described Reata did cite Jackson v. Galves ton, from the Houston opinion court and the have distin- a 1992 guished requirements Appeals. for waiver of Fourteenth Court (Tex.App.-Houston in a tort from that in a [14th Dist.] context denied). was a again, contract context. Tort claim ex- writ Once Jackson However, distinguishable case and from the tends both and suit. tort is Furthermore, context, in support in the common before us. contract law case be of its statement that “sue and sued” governmental was altered allow entities impliedly8 immuni liability by language did not to waive own, actions, i.e., cited by ty en- the Jackson court State’s the State Center, Lawson, Medical tering 87 Townsend v. Memorial into contract. See 520-21; (Tex.Civ.App.-Corpus at 529 S.W.2d 264 S.W.3d at n.r.e.) 249; Tex, 594; writ ref and Childs v. at Fed. Christi d Little (Tex. Moreover, Hospital, 479 S.W.2d 399 Sign, 951 S.W.2d 408. sound Greenville n.r.e.). 1972,writ ref'd Civ.App.-Texarkana tort policy supports distinguishing between Thus, munity appears suit. it Jackson argument was that the doctrine of 8. Jackson’s sovereign immunity incorrectly was unconstitutional. In and be sued" conceded that “sue argued making argument, he that “sue express was not an waiver. language impliedly sued” waived im- reading A of Townsend reveals it the issue the case. See id. at 795-96. Further, exclusively relied on Childs. it is The Webb court researched Texas law and only concluded, clear Childs not immuni- involved definitively, that Missouri Pa- ty context, in the tort exclusively relied subsisting authority which holds cific on cases decided before Missouri that “sue and be sued” language consti- Pacific. Townsend, 267; Childs, See express legislative tutes an waiver of im- I Accordingly, S.W.2d at would munity. Importantly, the Fifth Circuit de- reasoning decline follow Reata’s Reata, Jackson, Townsend, clined to follow distinguish it to the extent it discussed the Childs, stating that “the Texas Su- effect “sue and be language prior preme Court has question addressed the to the 1970 Tort Claims Act. answer, we are called upon now and the appellate state by decisions cited The Fifth

C. Circuit’s Decision In City persuade do not us to veer from this City Webb v. of Dallas precedent.” Finally, Id. at 795. re- A recent case written the United gard city’s contention that “sue and Fifth States Circuit of Appeals Court language speaks only be sued” capacity my instructive in reaching stance on this sue, the Fifth Circuit argu- stated that Dallas, City issue. Webb v. 314 F.3d ment was fact “belied that the vast (5th Cir.2002), city of Dallas majority of appeals state courts of to ad- claimed that a United States district court express legislative ques- dress the waiver jurisdiction was without in a suit for dam- tion in the context of similar ‘sue and be ages and brought against reverter the city sued’ clauses follow Missouri as by the Webbs. At issue was whether the controlling Supreme Texas prece- Court city was immune from suit under the Tex- believe, I dent.” Id. Fifth Circuit cor- regarding sovereign law analyzed rectly the state of law Texas’s id. at 792. The Webbs claimed *17 governmental immunity, and its conclusion for immunity basis waiver of suit regarding thirty-three-year-old the deci- government city the same code and char- sion in Missouri is sound. Pacific provisions ter cited to inus the Reata case. 21, Legislature D. Id. at 793 n. 22 What the (citing n. Means Tex. Local 51.075; § When It Uses “Sue and Be Lan- City Sued” Gov’t Ann. Code Dallas II, (3)). guage 1(2), CHARTER ch. city The argued provisions, those which con- Finally, any lingering doubt or concern tained “sue be language, and sued” did not about the effect that phrase the “sue and expressly waive suit. be governmental sued” has on Rather, city the claimed provisions the should have assuaged when the Tex- “simply

were city confirmations that the of as Legislature recently clearly identified corporate Dallas has the capacity to sue meaning the language. it attributes the Webb, and be sued.” 314 F.3d at 793-94. 1, 2003, On Legislature passed June the Alternatively, the city asked federal 1017, Bill ability Senate “relating certify court to express question county to sue and be sued.” See Tex. waiver on what it an deemed (2003). 1017, Leg., S.B. 78th R.S. Section “unsettled” area Texas law. two of the bill adds new section 262.007 Fifth certify code,

The Circuit refused to the local government entitled “Suit question to Supreme the Texas Against Court be- County Arising Under Certain controlling authority cause there was from Contracts.” Id. Perry signed Governor supreme 20, squarely court that addressed on bill June and statute add- September sovereign immunity.” took effect on 2003. While (d) ed). Bill 1017 will would no provisions Clearly, the new of Senate subsection have of this bearing phrase have no on outcome Legislature’s if the use of the effect case, I refer to the bill for the particular sued, plead or impleaded, “sue or be be it language uses and effect which a statuto- or be defended” was not defend Legislature must have intended reside for breach ry waiver of from suit language. in such Legisla- It clear that the of contract. cognizant that waiver of ture is clarity Legisla- The unmistakable unambiguous “clear and lan- must be ture’s motivations is set out in the state- that “sue and guage.” It is likewise clear “Background in Purpose” ment of lan- unambiguous clear and be sued” is the House and Senate committee re- both 1017, guage. ports. See Bill Tex. S.B. Analysis, (2003). language Leg.,

78th R.S. Identical states, report May “In each Conclusion Supreme Texas Court held that Section immu- Legislature expressly waives The Code, 89.004, Local Government does not nity a contract claim respecting clearly unambiguously language “sue and be sued” when uses for claims counties.” Id. supreme a statute. The court came to The supreme prompt- court’s decision that Rail- same conclusion Missouri resulting un- Pacific legislative ed the action is Navigation Dis- road Co. Brownsville questionably Pelzel. That decision was majority’s opinion in this case trict. 9,May clearly decided ad- as if overruled treats Missouri dressed the absence of “sue authority do so. There is without gov- section 89.004 of the local had supreme that the court has question concluding ernment code as the basis to overrule Missomi Pa- opportunity that the immu- not waived step. It not taken that I re- nity from suit in contract claims described cific. spectfully suggest the statute. that this Court should proceed court has not where I reverse the trial directed. would 89.004, Senate Bill 1017 amends section plea granting court’s District’s (a) and then adds section 262.007. Section *18 Therefore, I jurisdiction. respectfully county provides of the 262.007 that a dissent. a party a contract certain enumer- “may ated or services be goods sue or

sued, impleaded, or be or plead defend under the arising

be on claim defended added). contract.” Id. Subsec- (a) requires on the

tion also brought

contract be the name of the

county brought and shall in a state Later, county.

court in that subsection

(d) of the new statute states “This section or a limitation on

does not waive defense contract, party to a

damages available bar

other than a suit based Analysis, S.B.2017, (2003). Leg.,

9. See Bill 78th R.S.