By Amanda Sotak, Figari & Davenport, L.L.P.Andrew C. Whitaker, Figari & Davenport, L.L.P.Raymond E. Walker, Figari & Davenport, L.L.P.Ryan K. McComber, Figari & Davenport, L.L.P.

The major developments in the field of civil procedure during the Survey period occurred through judicial decisions and a handful of legislative enactments.

II. Subject Matter Jurisdiction
During the Survey period, several cases addressed sovereign immunity. In City of El Paso v. High Ridge Construction, a contractor brought a breach of contract claim against the city relating to a conservation services contract. The trial court denied the city’s plea to the jurisdiction. On appeal, the contractor argued that the city was not entitled to sovereign immunity based on the “proprietary-dichotomy” applied to cities, for example, under the Tort Claims Act. Recognizing that the Texas Supreme Court expressed doubt the dichotomy applied to contract claims in Tooke v. City of Mexia, the El Paso Court of Appeals examined the interplay between the Tort Claims Act, which addresses waiver in certain instances, and the source of the city’s immunity. Noting disagreement in the appellate decisions, the El Paso Court of Appeals followed its sister courts in San Antonio and Amarillo in holding that “we must begin our analysis with the presumption that the City is immune from suit for breach of contract.” Starting from that proposition, the court of appeals analyzed whether the contractor’s agreement, under which it provided services to city residents rather than the city itself, was sufficient to invoke the limited waiver of immunity under Chapter 271 of the Local Government Code, and ultimately determined it was not. The court of appeals therefore remanded to give the contractor the opportunity to cure and plead facts supporting a waiver of the city’s immunity as to the contract claim.

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Recommended Citation
Amanda Sotak, et al., Civil Procedure: Pre-Trial & Trial, 2 SMU Ann. Tex. Surv. 71 (2016)