Strasburger Governmental Newsletter - State May Not Sue Local Governments

The Texas Supreme Court has ruled that the City of Galveston is immune from a suit filed against it by the State of Texas.

The case arose when the Attorney General ("AG") sued the City to recover the state's costs to repair damages resulting from a ruptured City water line beneath a state highway. The City filed a plea to the jurisdiction of the trial court, asserting governmental immunity. The trial court granted the plea and the State appealed to the Court of Appeals, which reversed, holding that the City had no immunity from suit by the State.

The Supreme Court heard argument on February 16, 2006, but did not decide the case until March 2, 2007. In a 5:4 decision, the majority opinion reversed the Court of Appeals and held that the City was immune from suit by the State. Noting that the Attorney General could have sought authority from the Legislature to bring this suit and that the City of Galveston is older than the State of Texas, it ruled that the common law principle of governmental immunity from suit precludes the State from suing unless the Legislature unambiguously waives immunity. Since the Legislature had not done so, the AG was precluded from bringing the suit.

The dissenting justices argued that the City's immunity derives from the State, and therefore the State could bring the suit. Justice Willett wrote the dissent, concluding that "In this case, where you end up depends on where you start."

The majority began with the presumption of common law immunity and suggested that the AG may seek authority to sue, but until that authority is conferred, he may not do so. In reaching that conclusion, writing for the majority, Justice Brister recognized that although, "...reasonable judges may disagree whether the inherent nature of cities and states should render the former immune from suits by the latter...." the majority adhered to the "traditional rule that requires unambiguous legislation before setting immunity aside."

The dissent never addresses two issues:
1. Why the AG did not seek permission from the Legislature to bring the suit?
2. Why had prior AG's not brought suit?"

David J. LaBrec, Katie Anderson and Allyson Collins of Strasburger & Price, LLP submitted an amicus brief on behalf of the Texas Association of School Boards in support of the City of Galveston.

The question remains: does the AG have authority to sue local governments in contract rather than tort claims?

Observations:

In its opinion, the majority cites the Court's 1998 decision in Dallas County Mental Health and Mental Retardation v. Bossley decision. Strasburger represented Dallas County MHMR and we were successful in obtaining a ruling that Dallas County MHMR was immune from liability. The only dissenting opinion was by Justice Greg Abbott who is now the Attorney General. Furthermore, of the nine justices deciding the City of Galveston case, only one, Justice Hecht, was on the court in 1998.

Local government officials should be on the lookout during the 2007 Texas Legislative session to see whether the AG will seek authority to sue on behalf of the state of Texas.

If you would like a copy of the opinion, contact Maggie Murray (maggie.murray@straburger.com).