Case Number: 05-04-01079-CV 09/08/2006 Case stored in record room 08/25/2006 Mandate issued 06/30/2006 Petition for Review disposed petition granted pursuant to TRAP 59.1 06/30/2006 Petition for Review granted under TRAP 59.1 06/30/2006 Opinion issued CA reversed and remanded to TC 06/30/2006 Court approved judgment sent to attys of record Document issued by the Supreme Court 02/16/2006 Electronic copies of brief posted to website 02/07/2006 Waiver notice for brief on the merits 02/07/2006 Document received (See Remarks) 01/17/2006 Waiver notice for brief on the merits 01/17/2006 Document received (See Remarks) 01/04/2006 Case Record Filed 01/02/2006 Electronic copies of brief posted to website 12/20/2005 Record Requested in Petition for Review 12/19/2005 Brief on the Merits Requested 09/06/2005 Case forwarded to Court 08/01/2005 Petition for Review filed 08/01/2005 Appendix Filed OPINION
This is a sovereign immunity case. Appellee Sisk Utilities, Inc. was performing "road bores" in connection with sanitary sewer work and was required to bore under a water line belonging to appellant City of Greenville. According to Sisk, the City orally agreed to install a valve in its water line to shut water off during the bore. The City installed the valve, but during the work the water line broke, damaging Sisk's equipment. According to Sisk, the City also incorrectly located a sewer line, causing delay for Sisk. Sisk sued the City for breach of contract and various torts, including negligence and misrepresentation. The City answered and filed a plea to the jurisdiction claiming sovereign immunity. Sisk claimed the City's immunity was waived by the Texas Local Government Code and by the city charter. The trial court granted the City's plea for all matters except Sisk's claim based on "the alleged existence of a contract and the purported breach thereof." The City appeals.1 In two related issues, the City charges that the trial court erred by denying its plea to the jurisdiction on the contract claim and by impliedly finding that the City had waived its immunity from suit by contracting with Sisk.
Governmental immunity protects governmental entities from lawsuits for *Page 933 damages absent legislative consent. See Fed. Sign v. Tex. S.Univ., 951 S.W.2d 401, 405 (Tex. 1997). The doctrine embraces two distinct concepts: (1) immunity from suit, and (2) immunity from liability. See id. A governmental entity waives immunity from liability when it contracts with private citizens. Id. at 405-06. Immunity from suit, on the other hand, is waived only through consent expressed by clear and unambiguous language. SeeTravis County v. Pelzel Assocs. Inc., 77 S.W.3d 246, 248 (Tex. 2002) ("Express consent is required to show that immunity from suit has been waived."); see also TEX. GOV'T CODE ANN. §311.034 (Vernon 2005) ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). When determining whether there is a clear and unambiguous waiver of immunity from suit, we resolve any ambiguity in favor of retaining immunity. SeeWichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).
In this case, Sisk argues that the City's immunity from suit has been waived (a) by the Texas Legislature in the Texas Local Government Code, which provides that a municipality "may plead and be impleaded in any court," and (b) by the City itself in its charter, which avers that the City "may sue and be sued, . . . may implead and be impleaded in all courts and places and in all matters whatsoever." TEX. LOC. GOV'T CODE ANN. § 51.075 (Vernon 1999); CITY OF GREENVILLE CHARTER Art. 2, Sec. 5. This Court has recently analyzed and rejected similar arguments. See, e.g.,Satterfield Pontikes Constr., Inc. v. Irving Indep. Sch.Dist., 123 S.W.3d 63, 66-67 (Tex.App.-Dallas 2003, pet. filed) (concluding "sue and be sued" language found in section 11.151(a) of the Texas Education Code is not waiver of immunity); City ofCarrollton v. McMahon Contracting, L.P., 134 S.W.3d 925, 927-28 (Tex.App.-Dallas 2004, pet. filed) (concluding language in section 51.075 that city "may plead and be impleaded in any court" is not waiver of immunity). See also Dallas Fire FightersAss'n v. City of Dallas, No. 05-03-01787-CV, 2004 WL 1662945, at *2 (Tex.App.-Dallas July 27, 2004, pet. filed); City of Mesquitev. PKG Contracting, Inc., 148 S.W.3d 209, 214 (Tex.App.-Dallas 2004, pet. filed). We will not revisit our prior holdings today.
We conclude the City's immunity from suit has not been waived. Accordingly, we decide the City's issues in its favor. We vacate the appealed-from portion of the trial court's order — i.e., the phrase "except for the Plaintiff's claim based on the alleged existence of a contract and the purported breach thereof" — and we render judgment for the City.