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Click here for the full text of this decision FACTS:Iron Crow Construction Inc. entered into a contract with the town of Highland Park to rehabilitate portions of Highland Park’s water and sanitary sewer lines. When Iron Crow demanded payment for alleged extra work and costs, Highland Park rejected the demand. Iron Crow initiated a declaratory judgment action in an attempt to enforce a provision of the contract regarding arbitration. In response, Highland Park filed a plea to the jurisdiction on the ground that immunity from suit had not been waived. The trial court denied the plea, and this appeal ensued. HOLDING:The court vacates the trial court’s order and renders judgment for Highland Park. Texas Local Government Code 51.075 provides that a home-rule municipality “may plead and be impleaded in any court.” Tex. Local Gov’t Code Ann. 51.075 (Vernon 1999). Section 51.075 is not a clear and unambiguous waiver of the city’s immunity from suit. City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex.App. – Dallas 2002), rev’d on other grounds, 2004 WL 726906 (Tex. Apr. 2, 2004) (motion for rehearing granted Oct. 15, 2004). In City of Carrollton v. McMahon Contracting, L.L.P., 134 S.W.3d 925 (Tex. App. – Dallas 2004, pet. granted), the court used the four factors set forth by the supreme court in Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex.2003), to determine whether the Legislature has clearly and unambiguously waived sovereign immunity: 1. the statute waives immunity beyond doubt; 2. ambiguities are resolved in favor of retaining immunity; 3. if the Legislature requires the state be joined in a lawsuit in which immunity would otherwise attach, the Legislature has intentionally waived the state’s sovereign immunity; and 4. whether the statute also provides an objective limitation on the state’s potential liability. In that case, the court concluded that 51.075 is not meaningless without waiver of immunity because the section could speak to a city’s capacity to participate in litigation when immunity has been waived or to take action to preserve immunity. The court also noted that often a statute will provide “sovereign immunity to suit is waived” or use similar unambiguous language when the Legislature intends to waive immunity. The court did not apply the third or the fourth Taylor factors because neither is implicated in 51.075. The court concluded that 51.075 does not effect a waiver of the city’s immunity “by clear and unambiguous language.” The court notes that the Texas Supreme Court has never held that the language “plead and implead” is a clear and unambiguous waiver of immunity from suit. The court concludes that 51.075 does not constitute a clear and unambiguous waiver of the city’s immunity from suit. Section 1.04 of Highland Park’s charter, which is entitled “General Powers of the Town,” states that the Town may “sue and be sued” and may “plead and be impleaded in all courts.” Such language in a city charter provision that specifically enumerated the city’s powers does not waive the city’s sovereign immunity. This language in Highland Park’s charter simply speaks to Highland Park’s capacity to sue and its capacity to be sued when immunity has been waived. OPINION:Martin Richter, J.; Whittington, FitzGerald and Richter, JJ.

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