Abilene Housing Authority v. Gene Duke Builders, Inc.

Texas Supreme Court

Abilene Housing Authority v. Gene Duke Builders, Inc.

226 S.W.3d 415, 50 Tex. Sup. Ct. J. 828, 2007 Tex. LEXIS 470, 2007 WL 1576324

CourtTexas Supreme Court

DecidedJune 1, 2007

DocketNo. 05-0631

StatusPublished

Cited by7 cases

This text of 226 S.W.3d 415 (Abilene Housing Authority v. Gene Duke Builders, Inc.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abilene Housing Authority v. Gene Duke Builders, Inc., 226 S.W.3d 415, 50 Tex. Sup. Ct. J. 828, 2007 Tex. LEXIS 470, 2007 WL 1576324 (Tex. 2007).

Pincite

Opinion

PER CURIAM.

The Abilene Housing Authority contracted with Gene Duke Builders, Inc. for repair of housing units. After a dispute arose concerning completion and payment, Duke, pursuant to the contract, filed a claim with the “contracting officer,” the Authority’s executive director, to no avail. Duke then sought to appeal by demanding arbitration. When the Authority refused, Duke sued the Authority to compel arbitration. At first the trial court ordered arbitration, but the Authority then filed a plea to the jurisdiction, asserting that the procedures for resolving claims against the State in chapter 2260 of the Texas Government Code¹ provided the exclusive forum for Duke’s claim.² In response, Duke argued, among other things, that the Authority was not a “unit of state government” to which chapter 2260 applied.³ That term is defined by section 2260.001(4) to include any “entity that is in any branch of state government and that is created by the constitution or a statute,” but it expressly excludes “special purpose district^].”⁴ The trial court agreed with the Authority, vacated the order compelling arbitration, and dismissed the case for want of jurisdiction.

The court of appeals reversed, holding that a municipal housing authority is not a “unit of state government” to which chapter 2260 applies.⁵ We agree, for essentially the reasons offered by the court of appeals. Thus, chapter 2260 does not bar Duke’s suit.

The court of appeals further held that the Authority’s immunity from suit was waived by section 392.065 of the Texas Local Government Code, which lists in one sentence the “miscellaneous powers” of housing authorities and states in pertinent part: “An authority may: (1) sue and be sued-” After the court issued its opinion, we decided Tooke v. City of Mexia, which holds in part that section 51.075 of the Texas Local Government Code, stating that a home-rule municipality “may plead and be impleaded in any court,” does not waive immunity from suit because neither the brief provision itself nor its broader statutory context reflect a clear and unambiguous legislative intent to waive immuni[417]*417ty from suit.⁶ The text of section 392.065 no more reflects an intent to waive immunity than the text of section 51.075, and Duke does not argue that such an intent can be gleaned from the broader statutory context in which the former appears, a subject on which we express no opinion. The court of appeals’ opinion is thus inconsistent with Tooke, and we disapprove it.

But we also held in Tooke7 that absent some other waiver of immunity, sections 271.151-.160 of the Texas Local Government Code (enacted a month before the court of appeals issued its decision in this case⁸) retroactively waive, with limitations, immunity from suit for the “adjudication”⁹ of certain claims against a “local governmental entity” defined as “a political subdivision of this state, other than ... a unit of state government, as that term is defined by Section 2260.001, Government Code, including a ... special-purpose district or authority_”¹⁰ Special-purpose districts, expressly excluded under chapter 2260, are expressly included under sections 271.151-.160. The parties should have the opportunity on remand to address the applicability of these provisions and any other arguments.¹¹

Accordingly, we grant the Authority’s petition for review, and without hearing oral argument,¹² reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

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PER CURIAM.

The Abilene Housing Authority contracted with Gene Duke Builders, Inc. for repair of housing units. After a dispute arose concerning completion and payment, Duke, pursuant to the contract, filed a claim with the “contracting officer,” the Authority’s executive director, to no avail. Duke then sought to appeal by demanding arbitration. When the Authority refused, Duke sued the Authority to compel arbitration. At first the trial court ordered arbitration, but the Authority then filed a plea to the jurisdiction, asserting that the procedures for resolving claims against the State in chapter 2260 of the Texas Government Code¹ provided the exclusive forum for Duke’s claim.² In response, Duke argued, among other things, that the Authority was not a “unit of state government” to which chapter 2260 applied.³ That term is defined by section 2260.001(4) to include any “entity that is in any branch of state government and that is created by the constitution or a statute,” but it expressly excludes “special purpose district^].”⁴ The trial court agreed with the Authority, vacated the order compelling arbitration, and dismissed the case for want of jurisdiction.

The court of appeals reversed, holding that a municipal housing authority is not a “unit of state government” to which chapter 2260 applies.⁵ We agree, for essentially the reasons offered by the court of appeals. Thus, chapter 2260 does not bar Duke’s suit.

The court of appeals further held that the Authority’s immunity from suit was waived by section 392.065 of the Texas Local Government Code, which lists in one sentence the “miscellaneous powers” of housing authorities and states in pertinent part: “An authority may: (1) sue and be sued-” After the court issued its opinion, we decided Tooke v. City of Mexia, which holds in part that section 51.075 of the Texas Local Government Code, stating that a home-rule municipality “may plead and be impleaded in any court,” does not waive immunity from suit because neither the brief provision itself nor its broader statutory context reflect a clear and unambiguous legislative intent to waive immuni[417]*417ty from suit.⁶ The text of section 392.065 no more reflects an intent to waive immunity than the text of section 51.075, and Duke does not argue that such an intent can be gleaned from the broader statutory context in which the former appears, a subject on which we express no opinion. The court of appeals’ opinion is thus inconsistent with Tooke, and we disapprove it.

But we also held in Tooke7 that absent some other waiver of immunity, sections 271.151-.160 of the Texas Local Government Code (enacted a month before the court of appeals issued its decision in this case⁸) retroactively waive, with limitations, immunity from suit for the “adjudication”⁹ of certain claims against a “local governmental entity” defined as “a political subdivision of this state, other than ... a unit of state government, as that term is defined by Section 2260.001, Government Code, including a ... special-purpose district or authority_”¹⁰ Special-purpose districts, expressly excluded under chapter 2260, are expressly included under sections 271.151-.160. The parties should have the opportunity on remand to address the applicability of these provisions and any other arguments.¹¹

Accordingly, we grant the Authority’s petition for review, and without hearing oral argument,¹² reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

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226 S.W.3d 415, 50 Tex. Sup. Ct. J. 828, 2007 Tex. LEXIS 470, 2007 WL 1576324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abilene-housing-authority-v-gene-duke-builders-inc-tex-2007.

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