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Click here for the full text of this decision FACTS:As part of a 1982 agreement with the Texas Department of Transportation for construction of State Highway 275, the city of Galveston agreed to move and maintain nearby utilities. One of those utilities, a city water line, ruptured in 2001 and allegedly caused $180,872.53 in damages to the highway. The attorney general filed suit in the name of the state of Texas to recover damages for the city’s “negligent installation, maintenance, and upkeep” of its water line and the resulting damage to state property. The city filed a plea to the jurisdiction, special exceptions and a motion for summary judgment asserting governmental immunity. The trial court granted the jurisdictional plea. A divided 1st Court of Appeals reversed, holding that cities have no immunity from suit by the state. HOLDING:Reversed and rendered. Political subdivisions in Texas, the Texas Supreme Court stated, are immune from suit when performing governmental functions like the city of Galveston’s functions in this case. No statute should be construed to waive immunity absent clear and unambiguous language, the court stated, and the state asserts no such statute here. The Legislature has waived cities’ immunity from suit in a few general statutes, the court noted. In 1969, the Texas Tort Claims Act waived immunity for certain torts. More recently, the Legislature waived immunity for local government entities in suits based on written contracts. The Texas attorney general or the Texas Department of Transportation could have requested legislative consent to sue the city, but the court stated that neither party tried to do so. Given the novelty of this suit, the political nature of all the parties and the sensitivity of intergovernmental issues, the decision as to who should bear responsibility for governmental employees’ misconduct should be made by the peoples’ representatives, the court found. The state argued that because the city’s immunity is derived from the state, it defied logic to allow a city to assert immunity against the state. But the court stated that legislation rather than logic governs immunity, “just as Holmes said experience rather than logic governs the common law.” As a result, the court adhered to the traditional rule that requires unambiguous legislation before setting governmental immunity aside. OPINION:Brister, J., delivered the opinion of the court, in which O’Neill, Green, Medina and Johnson, J.J. joined. DISSENT:Willett, J., filed a dissenting opinion, in which Jefferson, C.J., and Hecht and Wainwright, J.J., joined. “In this case, where you end up depends on where you start. The Court’s starting point is that a city cannot be sued unless the Legislature has unmistakably waived immunity. I agree wholeheartedly when the petition reads”Citizen v. City’ but in the exceedingly rare case when it reads”State v. City,’ there is nothing for the Legislature to waive.”

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