ACCEPTED

10-17-00202-CV
TENTH COURT OF APPEALS
WACO, TEXAS
10/9/2017 11:43 AM
SHARRI ROESSLER
CLERK

October 9, 2017

The Honorable Tenth Court of Appeals

McLennan County Courthouse
501 Washington Avenue
Room 415
Waco, Texas 76701-1373

RE: City of Waco v. Citizens to Save Lake Waco, No. 10-17-00202-CV; Texas
Municipal League and Texas City Attorneys Association Letter of Amici Curiae

To the Honorable Court of Appeals:

The Texas Municipal League (TML) is a non-profit association of over

1,100 incorporated cities. TML provides legislative, legal, and educational services

to its members. The Texas City Attorneys Association (TCAA), an affiliate of

TML, is an organization of over 500 attorneys who represent Texas cities and city

officials in the performance of their duties. Believing that the issue of

governmental immunity is of utmost importance to cities in Texas, TML and

TCAA respectfully submit this letter of amici curiae in the above-referenced

cause. 1

1
The author of this letter is a salaried employee of TML who has received no fee for the
preparation of the letter.

7450887.4
 Amicis position, as is that of the City of Waco, is that the trial court erred in

denying the citys plea to the jurisdiction. The City of Waco is immune from

Appellees breach of contract claim. Amici intend to focus the courts attention on

two key points: (1) inaction does not waive a citys governmental immunity; and

(2) filing a permit application does not waive a citys governmental immunity.

Inaction does not Waive Governmental Immunity

A settlement is an agreement ending a dispute. BLACKS LAW DICTIONARY

(10th ed. 2014). Rather than wait on a court to decide the outcome of the lawsuit

filed by Wanda Glaze against the Texas Department of Health, the City of Waco

chose to resolve the dispute with Glaze by entering into a settlement agreement.

The scarce, but vital, resources of time and money guide a city in deciding

whether or not to settle a dispute. Entering into a settlement agreement avoids a

lengthy court proceeding; it also means cost savings to taxpayers. A city may

choose to protect the public fisc by avoiding the costs of a court determination of

an issue. By entering into a settlement agreement, the City of Waco could move

forward with its landfill permit and continue providing its citizens with solid waste

service.

Appellee asks this court to conclude that a city can waive governmental

immunity by inactionspecifically because it did not raise immunity in its answer

or before it settled the suit. This is contrary to Texas precedent, as the City of

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Waco explains in their briefs to this court. More importantly, from a practical

standpoint, requiring a city to raise the issue of governmental immunity before

entering into an agreement to settle a dispute would discourage the expedient

settlement of cases. Cities would be forced to unnecessarily prolong a dispute by

first raising the issue of governmental immunity to preserve it for future action.

Not only would this requirement encourage inefficiency but would also waste

taxpayer dollars.

The Supreme Court of Texas has recognized that the heavy presumption

in favor of immunity arises not just from separation-of-powers principles but from

practical concerns. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).

These practical concerns include the time and financial savings associated with a

settlement agreement in lieu of a court proceeding. Though Texas cities may differ

in size and culture, they share a commitment to the efficient delivery of quality

services to citizens. This commitment is the foundation behind each and every

policy decision made by a city, including whether or not to settle a dispute. Amici

ask this court to refrain from the conclusion that a citys inaction waives

governmental immunity, as this outcome would dissuade cities from expediently

settling disputes in the best interest of their citizens.

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Filing a Permit Application does not Waive Governmental Immunity

It is undisputed that the City of Waco is a home rule city. As a home rule

city, the city derives its power from the Texas Constitution. A home rule city may

exercise its general police power to the extent not preempted by the United States

or Texas Constitutions or federal or state law. TEX. CONST. Art. XI, 5. See also

TEX. LOC. GOVT CODE, 51.072. Courts recognize both express and implied

preemption. Express preemption occurs when a state legislative measure

specifically mandates that cities must not enact measures involving a specific topic

or expressly dictates how a city must act. Whereas, implied preemption occurs

when the state regulates an activity so broadly that there is so little left to regulate,

that courts will find the field preempted.

The Texas Legislature has preempted cities both expressly and impliedly

by delegating permitting authority to the Texas Commission on Environmental

Quality. The Supreme Court has concluded that an agencys rules may preempt

when the agency is acting within the scope of its congressionally delegated

authority. Louisiana Pub. Serv. Comm'n v. F.C.C., 476 U.S. 355, 374 (1986). The

legislature granted the Texas Commission on Environmental Quality (TCEQ)

exclusive jurisdiction over solid waste permitting. See TEX. HEALTH & SAFETY

CODE 361.061. (Except as provided by Section 361.090 with respect to certain

industrial solid waste, the commission may require and issue permits authorizing

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and governing the construction, operation, and maintenance of the solid waste

facilities used to store, process, or dispose of solid waste under this chapter.);

TEX. HEALTH & SAFETY CODE 361.011(a) & (b). Through administrative rule, the

TCEQ requires that a city obtain a permit for a landfill. These administrative rules

are preemptive and binding on cities.

The Texas Legislature has expressly preempted cities in a number of areas

by requiring that cities obtain permits or authorization from a state agency for a

certain activity. For example, a city must obtain a permit to release air

contaminants, to use state water, or to discharge sewage, municipal waste,

recreational waste, agricultural waste, or industrial waste. See, e.g., TEX. HEALTH

& SAFETY CODE 382.0518(a) (Preconstruction Permit); TEX. WATER CODE

11.002 (Acquisition of Right to Use State Water); TEX. WATER CODE

26.121(Unauthorized Discharges Prohibited). A city must also obtain a permit in

order to serve alcohol at any city-owned facility. See TEX. ALCO. BEV. CODE

61.01 (License Required).

Though both preemption and waiver of governmental immunity require

action by the legislature, delegating permitting authority to a state agency has no

effect on a citys governmental immunity. The Supreme Court of Texas has held

that to waive immunity, consent to suit must ordinarily be found in constitutional

provision or legislative enactment. Wasson Interests, Ltd. v. City of Jacksonville,

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489 S.W.3d 427, 432 (2016) quoting Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 695 (Tex. 2003). Immunity from liability is waived when a city enters

into a contract and voluntarily binds itself to the terms of that contract. Id.

However, immunity from suit may only be waived by the Texas Legislature. See

Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997) ([I]t is the

Legislatures sole province to waive or abrogate sovereign immunity.)

Why is it so important that a waiver of immunity be under the purview of the

legislature? Certainty. Cities are formed for the purpose of managing the needs of

people who live and work in close quarters. Texas cities offer basic services, such

as solid waste disposal, to protect the health and safety of citizens. Governmental

immunity allows cities to perform functions and enter into contracts that benefit

citizens, free from the constant threat of defending lawsuits and paying judgments.

TNRCC v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). It is the need for certainty

that has led courts in Texas to long recognize that a waiver of governmental

immunity must be clear and unambiguous. Tooke v. City of Mexia, 197 S.W.3d

325, 328-329 (Tex. 2006) citing TEX. GOV'T CODE 311.034 (In order to preserve

the legislatures interest in managing state fiscal matters through the appropriations

process, a statute shall not be construed as a waiver of sovereign immunity unless

the waiver is effected by clear and unambiguous language.); City of LaPorte v.

Barfield, 898 S.W.2d 288, 291 (Tex.1995) (It is a well-established rule that for

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the Legislature to waive the States sovereign immunity, it must do so by clear and

unambiguous language. Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980); accord

Welch v. State, 148 S.W.2d 876, 879 (Tex.Civ.App.Dallas 1941, writ ref'd);

Texas Prison Bd. v. Cabeen, 159 S.W.2d 523, 527528 (Tex.Civ.App.Beaumont

1942, writ ref'd). The same rule applies, of course, to the waiver of immunity for

other governmental entities.); see also United States v. Williams, 514 U.S. 527,

531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) (stating that in determining whether

sovereign immunity has been waived, [o]ur task is to discern the unequivocally

expressed intent of Congress, construing ambiguities in favor of immunity.).

Appellee confuses the concept of preemption with waiver of governmental

immunity. The legislature has granted exclusive jurisdiction over permitting to the

Texas Commission on Environmental Quality. This delegation of authority is far

from a clear and unambiguous waiver of governmental immunity. To retain

governmental immunity, would a city be forced to disregard administrative rule

requirements? Affirming the trial courts denial of the citys plea to the jurisdiction

would lead to an absurd result: a city would waive governmental immunity by

complying with an administrative rule. Appellee ignores the premise that a city is

required to obtain a permit to operate a landfill. In fact, Appellee compares this

case to Reata Constr. Corp. v. City of Dallas. 192 S.W.3d 371 (Tex. 2006). The

courts conclusion was that the decision by the City of Dallas to file suit for

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damages encompassed a decision to leave its sphere of immunity. In this case, the

City of Waco had no decision to make. The city is required to comply with

administrative rule requirements.

The Supreme Court of Texas made clear in Tooke that governmental

immunity is the default rule. Tooke, 197 S.W.3d at 331-332. Because of this,

Appellee must point to a clear and unambiguous waiver of immunity in the law. In

its brief, Appellee fails to offer any statutory waiver. No such waiver provision

exists. In the absence of a clear waiver of immunity, a city retains governmental

immunity.

The bottom line is this: the City of Waco did not waive its immunity to suit.

Failing to raise immunity prior to entering into a settlement agreement does not

waive a citys governmental immunity. Likewise, filing a permit application for a

landfill does not waive a citys governmental immunity. Determining to the

contrary would have significant negative consequences for cities and their ability

to continue providing fundamental services of government for citizens of this

State.

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 TML and TCAA as amici curiae, respectfully submit this letter and request

this Court to find in favor of the Appellant, the City of Waco.

Respectfully Submitted,

/s/ Heather M. Lockhart

Heather M. Lockhart
Assistant General Counsel
Texas Municipal League
1821 Rutherford Lane, Suite 400
Austin, Texas 78754-5128
(512) 231-7400
(512) 231-7490 facsimile
heather@tml.org
State Bar No. 24073122
Attorney for Amici Curiae
Texas Municipal League
Texas City Attorneys Association

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 CERTIFICATE OF COMPLIANCE

In compliance with Rule 9.4 of the Texas Rules of Appellate Procedure, this is to
certify that this Letter Brief of Amici Curiae contains 1,756 words and has been
prepared in a conventional typeface of 14-point font in the text.

/s/ Heather M. Lockhart

Heather M. Lockhart

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 CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of October, 2017, a copy of the foregoing
instrument was served upon the following counsel by electronically filing with the
Clerk of Court using the eFileTXcourts.gov electronic filing system, which will
send notification of such filing to the following:

Counsel for Appellant:

James F. Parker, III Andy McSwain

State Bar No. 24027591 State Bar No. 13861100
Ashley D. Thomas FULBRIGHT WINNIFORD, P.C.
State Bar No. 24090430 P.O. Box 445
LLOYD GOSSELINK ROCHELLE & Waco, Texas 76703
TOWNSEND, P.C. (254) 776-6000
816 Congress Avenue, Suite 1900 (254) 776-8555 (Fax)
Austin, Texas 78701
(512) 322-5800
(512) 472-0532 (Fax)

Counsel for Appellee:

Ronald L. Beal Kevin J. Terrazas

State Bar No. 24005041 State Bar No. 24060708
ENOCH KEVER PLLC Timothy A. Cleveland
5918 W. Courtyard Dr. #500 State Bar No. 24055318
Austin, Texas 78730 CLEVELAND TERRAZAS PLLC
(512) 615-1200 4611 Bee Cave Rd. # 306B
Austin, Texas 78746
(512) 680-3257

/s/ Heather M. Lockhart

Attorney for Amici Curiae
Texas Municipal League
Texas City Attorneys Association

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