HomeMy WebLinkAboutR2004-007A RESOLUTION AUTHORIZING THE PARTICIPATION BY THE CITY
ATTORNEY IN AN .,IMICI CURL4E BRIEF TO BE FILED BY A NUMBER OF
HOME RULE CITIES IN SUPPORT OF THE ARGUMENT BY CITY OF
IRVING, TEXAS, IN THE APPEAL PENDING IN THE FIFTH DISTRICT
COURT OF APPEALS STYLED CITY OF IRVING V. INFORM
CONSTRUCTION, INC., AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, in 1996 the Texas Supreme Court in Federal Sign v. Texas Southern
Univ., 951 S.W.2d 401, opined that a private citizen must have legislative consent to sue
the State on a breach of contract claim and the act of contracting does not waive
sovereign immunity from suit; and
WHEREAS, in 2003 the Fifth District Court of Appeals in Satterfield & Pontikes
Construction, Inc. v. Irving Independent School District, 2003 WL 22221024, opined that
language in the Education Code providing that trustees of an independent school district
could "sue and be sued" did not waive a public school district's governmental immunity
from suit in breach of contract cases; and
WHEREAS, the charters of many Home Rule Cities contain the identical "sue and
be sued" language found in the Education Code; and
WHEREAS, the City of Irving, Texas (Irving) has been sued by Inform
Construction, Inc. (Inform) for breach of contract without obtaining the permission of
Irving to be sued based on the argument that the "sue and be sued" language in the Irving
City Charter waives governmental immunity from suit;
WHEREAS, Irving filed a plea to the jurisdiction in the 193ra District Court
arguing the "sue and be sued" language in its City Charter was not sufficient to waive
governmental immunity from suit and such plea was denied by the District Court; and
WHEREAS, Irving has appealed the denial of its plea to the jurisdiction to Fifth
District Court of Appeals and a number of Home Rule Cities have prepared an Arnici
Curiae Brief arguing the Irving Charter language does not constitute a waiver of
governmental immunity from suit; and
WHEREAS, the City Attorney has reviewed the Amici Curiae Brief and finds that
it is consistent with the authority in Federal Sign, Satterfield and other well reasoned
opinions and believes that it would be in the best interest of the City of Denton, a Home
Rule City, to be a participant in the Amici Curiae Brief and for the City Attorney to be a
signatory to such brief; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. That the City of Denton, Texas agrees to participate with other
Home Rule Cities in an Arnici Curiae Brief to be filed in support of the argument by the
City of Irving, Texas, in the appeal pending in the Fifth District Court of Appeals styled
City ofIrving v. Inform Construction, Inc., that governmental immunity from suit has not
been waived in breach of contract actions.
SECTION 2. That the City Attorney is authorized to be a signatory on the Amici
Curiae Brief at~er review of the final draft of such brief by the City Attorney's Office and
a finding by the City Attorney that the final draft is consistent with Texas Constitutional
and Statutory Laws and competent court decisions.
SECTION 3. That this resolution shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED on this, the off__ff~ay of February, 2004.
HON. EULINE BROCK, MAYOR
aTTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM: