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Missouri Pacific R Co. v. Brownsville Nav. Dist

Supreme Court of Texas
May 20, 1970
453 S.W.2d 812 (Tex. 1970)

Summary

holding that statute containing "sue and be sued" language provided consent to suit

Summary of this case from Travis Cty. v. Pelzel Assoc

Opinion

No. B-1848.

April 22, 1970. Rehearing Denied May 20, 1970.

Appeal from the 103rd District Court, Cameron County, William Scanlan, J.

Hardy Sharpe, Eduardo R. Rodriguez, Brownsville, for petitioner.

Kleberg, Mobley, Lockett Weil, Leslie S. Lockett, Corpus Christi, for respondent.


The question in this case is sovereign immunity from suit. Uncie Wells, a brakeman for Missouri Pacific Railroad Company, lost his life as the result of an accident that occurred on December 22, 1967. His statutory beneficiaries sued MoPac and Lallier Co. for damages, claiming that the death of Wells was proximately caused by defendants" negligence. According to the allegations of the petition, Wells was knocked from a ladder on the train by a crane that was owned by Lallier Co. and that had been left too near the track over which the train was moving.

MoPac filed a cross-action against Brownsville Navigation District of Cameron County, Texas, seeking indemnity for any sums it was adjudged to pay. As a basis for its claim of indemnity, MoPac alleged a written track agreement providing that District "would not permit to be constructed, placed, or erected, over, under, or adjacent to any of the tracks on the lands of the District, any structure, object, or obstruction which would violate any statute, law, or regulation then in effect with respect to the subjects of clearances or safety margins in the vicinity of railroad tracks." MoPac further alleged that District placed, or permitted the placement of, a mobile dragline near the track in violation of Article 6559b, and that this was the sole cause of Wells" death.

Except as otherwise indicated, all statutes are referred to by the article number under which they appear in Vernon's Annotated Texas Civil Statutes.

District filed a pleading labeled "Plea to the Jurisdiction, Plea in Abatement and Motion to Dismiss." It there prayed that the cross-action be abated and dismissed on the ground that it is a political subdivision of the State performing governmental functions and that consent to its being sued had not been given. The trial court severed the claims asserted by MoPac against District, sustained the plea to the jurisdiction, and dismissed the cross- action. The Court of Civil Appeals affirmed. 445 S.W.2d 818. We reverse the judgments of the courts below and remand the case to the district court.

It is necessary to distinguish between two different governmental immunities: (1) immunity from suit without consent even though there is no dispute as to liability of the sovereign; and (2) immunity from liability even though consent to the suit has been granted. See 27 Tex.Law.Rev. 337. We are concerned here only with the former. District was originally created under the authority of Article 16, Section 59, of the Texas Constitution, Vernon's Ann.St., and Chapter 5 of the General Laws passed by the Legislature in 1925. Acts 1925, 39th Leg., p. 7, ch. 5. Four years later the Legislature formally created and validated District and provided, among other things, for the election of the navigation and canal commissioners. Acts 1929, 41st Leg., p. 410, ch. 192. Another statute which by its terms formally creates District and validates certain of its actions was passed in 1931. Acts 1931, 42nd Leg., Sp.Laws, p. 5, ch. 3. Each of the validating acts makes it clear that District would, except as otherwise provided, continue to be governed by the statute under which it was originally created, and no change was made with respect to suits against District. Section 46 of the 1925 Act, which is now Section 46 of Article 8263h, provides as follows:

"All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district, and all courts of this State shall take judicial notice of the establishment of all districts."

District points out that there are other statutes in which the Legislature's intention to give consent to suits has been more clearly expressed. See Article 1176a, Vernon's Ann.P.C.; Articles 6252 — 19, 6453, 7057b. On the other hand suits against counties have been held to be authorized by statutes that simply require the filing of a claim before institution of suit, provide for inhabitants of the county to serve as jurors or witnesses, and prohibit the issuance of an execution on a judgment against the county. Articles 1572 et seq.; Hamilton County v. Garrett, 62 Tex. 602. In our opinion Article 8263h is quite plain and gives general consent for District to be sued in the courts of Texas in the same manner as other defendants.

MoPac did not allege, or seek leave to amend and allege, that consent to the suit had been given, and District insists that an allegation of consent must be made by anyone suing a governmental unit. This is so when the action is against the State and there is no general statute authorizing suits of that nature. In Walsh v. University of Texas, Tex.Civ.App., 169 S.W.2d 993 (wr. ref.), it was observed that the trial court had no jurisdiction to hear the case without an allegation and showing of consent. That rule is entirely sound where the suit may not be maintained unless authorized by a special act or resolution. In this instance, however, District is a political subdivision that is always subject to suit by virtue of a general statute, and it is not necessary to allege or prove the statute under these circumstances.

District also says, and with some reason, that MoPac never contended prior to oral argument in this Court that the suit was authorized by general statute. None of the points of error in the Court of Civil Appeals asserted that the Legislature had given consent. Article 8263h and other similar statutes applicable to navigation districts were not cited there. It is not surprising, therefore, that the intermediate court affirmed the judgment of the trial court dismissing the cross-action. In the argument under one of the points in the Court of Civil Appeals, in the motion for rehearing there, and in its argument here, however, MoPac insisted that navigation districts are suable in the same manner as counties and school districts. Since this argument led us to Article 8263h and the other statutes mentioned above, we regard it as sufficient to present the contention that the Legislature had, as in the case of counties and school districts, given general consent to suits against District. The case is not ripe for a determination of the question of immunity from liability, and it is not considered or decided.

See Articles 8228 and 8263e § 75.

The judgments of the courts below are reversed, and the cause is remanded to the district court for further proceedings not inconsistent with this opinion.


Summaries of

Missouri Pacific R Co. v. Brownsville Nav. Dist

Supreme Court of Texas
May 20, 1970
453 S.W.2d 812 (Tex. 1970)

holding that statute containing "sue and be sued" language provided consent to suit

Summary of this case from Travis Cty. v. Pelzel Assoc

holding that a statute authorizing a navigation district to "sue and be sued" waived immunity

Summary of this case from Texas A & M University-Kingsville v. Lawson

holding that such statutory language "is quite plain and gives general [legislative] consent for District to be sued in the courts of Texas in the same manner as other defendants."

Summary of this case from Porretto v. Patterson

holding section 51.075 of the local government code constitutes express waiver of municipality's immunity from suit

Summary of this case from City of Harlingen v. Alvarez

holding language "quite plain and gives general consent" for governmental entity to be sued in courts in same manner as other defendants

Summary of this case from City v. Reeves

holding that no allegation of consent to suit is required where there is a general statute authorizing the governmental entity to sue and be sued

Summary of this case from City, Dallas v. First Trade

holding water navigation district's immunity was waived where statute provided for suit by and through navigation and canal commissioners

Summary of this case from Tarrant Cty Hosp v. Henry

finding waiver in another statute

Summary of this case from Travis Co. v. Pelzel Assoc

referencing Act of May 28, 1965, 59th Leg., R.S., ch. 507, § 3, 1965 Tex. Gen. Laws 1022, 1022 ("Any person who by verified petition alleges that he is entitled to compensation under this Act may bring suit against the State of Texas. This Act grants permission to such persons to sue the State and the State's immunity from suit is hereby waived as to all actions brought under this Act.") (formerly TEX. PEN. CODE ANN. art. 1176a, current version at TEX. CIV. PRAC. REM. CODE § 103.101); Tort Claims Act, Act of May 14, 1969, 61st Leg., R.S., ch. 292, § 4, 1969 Tex. Gen. Laws 874, 875-876 ("To the extent of such liability created [by this statute], immunity of the sovereign to suit, as heretofore recognized and practiced in the State of Texas with reference to units of government, is hereby expressly waived and abolished, and permission is hereby granted by the Legislature to all claimants to bring suit against the State of Texas, or any and all other units of government covered by this Act, for all claims arising hereunder.") (formerly TEX. REV. CIV. STAT. ANN. art. 6252-19, § 3, current version at TEX. CIV. PRAC. REM. CODE § 101.025); TEX. REV. CIV. STAT. ANN. art. 6453 (stating that a party dissatisfied with a decision of the Railroad Commission "may file a petition . . . in a court of competent jurisdiction . . . against said Commission as defendant"); Act of June 1, 1933, 43d Leg., R.S., ch. 214, § 2, 1933 Tex. Gen. Laws 637, 637 (providing that a taxpayer seeking a refund may bring "suit . . . against the public official charged with the duty of collecting such tax or fees, the State Treasurer and the Attorney General") (formerly TEX. REV. CIV. STAT. ANN. art. 7057b, § 2, current version at TEX. TAX CODE §§ 112.052-.053)

Summary of this case from Tooke v. City of Mexia

illustrating State consented to be sued by "sue and be sued" language in asserted statute

Summary of this case from Pharr San Juan — Alamo School Dist v. Campos

addressing similar "sue and be sued" argument, despite its being raised for first time at oral argument in supreme court

Summary of this case from Tarrant Cty Hosp v. Henry

noting predecessor statute authorized suit after filing of claim prior to institution of the suit

Summary of this case from County of Bexar v. Garcia

presenting the contention of consent for the first time during oral argument before the supreme court

Summary of this case from Engelman Irr. v. Shields Bros
Case details for

Missouri Pacific R Co. v. Brownsville Nav. Dist

Case Details

Full title:MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. BROWNSVILLE NAVIGATION…

Court:Supreme Court of Texas

Date published: May 20, 1970

Citations

453 S.W.2d 812 (Tex. 1970)

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