Wrongfully forced from home

Texas Case Law

CITY OF WESLACO v. BORNE, 13-05-126-CV (Tex.App. [13th
Dist.] 12-14-2006) CITY OF WESLACO, TEXAS, ET AL.,
Appellants v. CARL L. BORNE, ET AL., Appellees. No.
13-05-126-CV. Court of Appeals of Texas, Thirteenth
District, Corpus Christi — Edinburg. December 14,
2006.

On appeal from the 206th District Court of Hidalgo County,
Texas.

Before Justices YANEZ, CASTILLO, and GARZA.

OPINION

DORI CONTRERAS GARZA, Justice.

On August 22, 2005, we issued a memorandum opinion
dismissing this case for lack of jurisdiction. See City of
Weslaco v. Borne, No. 13-05-126-CV, 2005 Tex. App. LEXIS
6783 (Corpus Christi, August 22, 2005, no pet. h.).
Appellees filed a motion for rehearing on September 6,
2005. Shortly thereafter, appellants filed a motion for
correction of judgment, asking the Court to change its
judgment to indicate that their issues challenging the
trial court’s subject matter jurisdiction had been
sustained. On January 11, 2006, while appellees’ motion for
rehearing was still pending, appellees filed an “emergency
motion for temporary injunctive order or for remand to
consider interim relief.” Subsequently, this Court withdrew
its prior opinion and ordered a rehearing. We now issue the
following opinion reversing the trial court’s order denying
appellants’ pleas to the jurisdiction. In doing so, we
dismiss as moot appellees’ emergency motion and appellants’
motion for correction of judgment.

Background

This case is essentially a landlord-tenant dispute. It
involves a mobile home park known as the Lakeview Senior
Mobile Home Park (“Lakeview Park”). Appellants own and
operate Lakeview Park. Appellees are current and former
residents of Lakeview Park who claim that appellants are
wrongfully forcing them from their homes.

The dispute began when appellees learned of appellants’
plans to transfer ownership of Lakeview Park to the Texas
Parks and Wildlife Department for development as a birding
center. Appellees are against the proposal because Texas
Parks and Wildlife will not accept the property for
development if people continue to reside there. Appellees
understand this condition to mean that appellants will
ultimately force them from their homes to carry out their
plan of developing a birding center.

Before any transfer of ownership could occur, appellees
sued appellants for fraud, negligent misrepresentation,
violations of the Texas Deceptive Trade Practices Act,
breach of contract, statutory fraud in a real estate
transaction, statutory violations of Chapter 94 of the
Texas Property Code, and permanent injunctive relief
preventing appellants from “selling, transferring,
encumbering, leasing, or otherwise disposing of the
Lakeview property without protecting or allowing for the
plaintiffs’ legal rights to remain in the park for as long
as they can care for themselves.”

Appellants answered the lawsuit and filed special
exceptions. They also filed pleas to the jurisdiction,
raising ripeness and governmental immunity as grounds for
dismissing appellees’ claims without a trial on the merits.
The trial court denied the pleas to the jurisdiction and
this interlocutory appeal ensued. See Tex. Civ. Prac. & Rem
Code Ann. § 51.014(a)(8) (Vernon 2006).

Before addressing the merits of the appeal, we pause to
specify the identities and roles of the three appellants
before this Court: (1) the City of Weslaco owns Lakeview
Park; (2) the Weslaco Development Committee, Inc. (“WDC”)
previously owned and operated Lakeview Park; and (3) and
the Economic Development Corporation of Weslaco (“EDC”) is
a successor corporation to WDC and currently operates
Lakeview Park in behalf of the City of Weslaco. Wherever
possible, we will refer to appellants collectively;
however, at times, it will be necessary to discuss their
roles in this litigation individually.

Standard of Review

A trial court’s ruling on a plea to the jurisdiction is a
question of law subject to de novo review. Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002). In determining whether jurisdiction exists, we
accept all allegations in the pleadings as true. See City
of San Antonio v. Butler, 131 S.W.3d 170, 174 (Tex.App.
— San Antonio 2004, pet. denied). The plaintiff has
the burden to plead facts affirmatively demonstrating the
court’s jurisdiction. Id. Therefore, we may consider
evidence presented to the trial court to the extent
necessary to determine the jurisdictional facts. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

I. Ripeness

In our prior opinion, we concluded that appellees’ claims
against appellants were not ripe and accordingly sustained
the seventh issues raised in appellants’ briefs. See City
of Weslaco v. Borne, No. 13-05-126-CV, 2005 Tex. App. LEXIS
6783 (Corpus Christi, August 22, 2005, no pet. h.). On
rehearing, we begin our analysis by revisiting that
holding.

Ripeness is one of several categories of justiciability.
Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001). The
doctrinal purpose of ripeness is to prevent premature
adjudication. See Patterson v. Planned Parenthood, 971
S.W.2d 439, 442 (Tex. 1998). The issue of ripeness thus
questions when a particular action may be brought. Id.
Ripeness asks whether the facts have developed sufficiently
so that an injury has occurred or is likely to occur. Id.
The focus of the ripeness inquiry is therefore on whether
the case involves uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur
at all. Id.

Ripeness involves both jurisdictional and prudential
concerns. See id. at 442-43. Jurisdictionally, ripeness
operates to prevent Texas courts from issuing judicial
advisory opinions, which are constitutionally prohibited.
See Tex. Const. art. II, § 1 (separation of powers),
art. IV, §§ 1, 22 (attorney general is part of
the executive department and is empowered to issue advisory
opinions to the governor and other officials); Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.
1993) (holding that separation of powers prohibits courts
from issuing advisory opinions, a function of the executive
department). Ripeness also has a pragmatic, prudential
aspect that is directed toward conserving judicial time and
resources for real and current controversies, rather than
abstract, hypothetical, or remote disputes. Patterson, 971
S.W.2d at 443.

Appellants have filed two appellate briefs in this case:
one for the City of Weslaco and the other for WDC and EDC.
The seventh issue raised in the City of Weslaco’s appellate
brief makes the following argument on ripeness:

The trial court erred in denying the Appellant’s Pleas to
the Jurisdiction because the matter before the trial court
lacked “ripeness” in that Appellees are basing their claims
on a contingent or hypothetical event, (i.e. the breach of
an alleged oral lease through their eviction), which had
not happened at the time the lawsuit was filed, at the time
the Pleas were urged or at the time the Pleas were denied.

Appellant City of Weslaco’s Appellate Brief p. 20.

The seventh issue in the brief filed by WDC and EDC also
argues that appellees’ claims are not ripe for review:

Appellees’ case is based entirely upon hypothetical facts
and events that have not come to pass. Appellees complained
that, on December 10, 2003, the mayor of Weslaco informed
several of the Appellees of the City’s intention to breach
purported promises to allow Appellees to live perpetually
at the Lakeview Park. The Appellees admit in the [live
petition] . . . that the City subsequently took the position
that the mayor’s statement may not have been an official
statement of the City’s intentions. No defendant in this
case has actually acted to evict any of the Appellees. The
alleged announcement by the mayor was subsequently called
into question, thus rendering the statement an example of a
hypothetical fact: hypothetically the City of Weslaco
intends to evict Appellees. Appellees’ case is based
entirely on what might happen to them at some point in the
future.

Appellate Brief of Appellants WDC & EDC p. 15.

The Texas Supreme Court has held that a determination of
ripeness should not necessarily be limited to the facts and
circumstances of the case as they existed at the time the
lawsuit was filed. See Del Rio, 66 S.W.3d at 252;
Patterson, 971 S.W.2d at 442. A claim’s lack of ripeness
when filed is not a jurisdictional infirmity requiring
dismissal if the case has subsequently matured. Del Rio, 66
S.W.3d at 252.

In the time between the issuance of our original opinion
and the date on which we granted rehearing, appellees
supplemented the record with 15 affidavits demonstrating
that appellants have taken measures such as disconnecting
water and electrical utilities to force appellees from
their homes. The supplemented record also shows that
eviction proceedings have been commenced by appellants in
justice court to remove appellees from Lakeview Park. Based
on these facts and circumstances, we conclude that
appellants’ ripeness arguments to this Court have become
untenable. The developments in this case, specifically, the
post-appeal efforts to evict appellees from their homes,
demonstrate that this case presents a real, live
controversy that is not dependent on uncertain or
contingent future events. Accordingly, we overrule
appellants’ issues challenging the ripeness of the claims
against them.

II. Governmental Immunity

In their remaining issues, appellants contend that the
trial court erred in denying their pleas to the
jurisdiction based on governmental immunity.[fn1] According
to appellants, the claims filed by appellees cannot be
maintained because appellants enjoy governmental immunity
to suit. In contrast, appellees maintain that governmental
immunity is no bar to suit because the complained-of
actions involve proprietary functions and not governmental
functions for which there is immunity. In addition,
appellees also contend that governmental immunity has been
statutorily waived as to all three appellants. They cite
sections 51.013, 51.033, and 51.075 of the Texas Local
Government Code as a waiver of the City of Weslaco’s
immunity to suit, and they cite section 23(a)(9) of article
5190.6 of the Texas Revised Civil Statutes as a waiver of
immunity to suit for WDC and EDC. See Tex. Loc. Gov’t Code
Ann. §§ 51.013, 51.033, & 51.075 (Vernon
1999); Tex. Rev. Civ. Stat. Ann. art. 5190.6, §
23(a)(9) (Vernon Supp. 2006).

A. Applicable Law

Governmental immunity protects against lawsuits for money
damages to the extent a municipality engages in the
exercise of governmental functions. See Gen. Servs. Comm’n
v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.
2001); City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.
1997); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405
(Tex. 1997). Nearly 160 years ago, the Texas Supreme Court
first acknowledged the common law rule that “no state can
be sued in her own courts without her consent, and then
only in the manner indicated by that consent.” Hosner v.
DeYoung, 1 Tex. 764, 769 (1847). In the time since that
initial pronouncement, the rule has become firmly
established in both common law and statutes and is now
applied to the state’s various governmental entities. See
Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Governmental immunity has developed into two distinct
forms: (1) immunity from suit, which bars suit against a
governmental entity altogether; and (2) immunity from
liability, which bars enforcement of a judgment against a
governmental entity. Id. at 331; Mo. Pac. R.R. Co. v.
Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.
1970). The distinction between immunity from suit and
immunity from liability is an important one. Even if a
governmental entity has acknowledged liability on a claim,
it cannot be sued without the legislature’s consent. Tex.
DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Conversely,
the legislature’s consent to suit is insufficient to
recover on a claim against a governmental entity if
immunity to liability has not been waived. Fed. Sign., 951
S.W.2d at 405.

From this explanation, we can also observe another
important distinction between the two forms of immunity.
Immunity from suit implicates a court’s subject matter
jurisdiction, whereas immunity from liability does not. See
Jones, 8 S.W.3d at 638. This is because immunity from
liability protects against a final judgment and not against
the suit itself. Tooke, 197 S.W.3d at 331. Consequently,
the two types of immunity must be raised in different ways.
A plea to the jurisdiction is the appropriate procedural
vehicle for challenging a court’s jurisdiction based on
immunity to suit. See Jones, 8 S.W.3d at 638. In contrast,
immunity to liability must be pled as an affirmative
defense under rule 94. See Tex. R. Civ. P. 94; Jones, 8
S.W.3d at 638.

Appellees argue that the foregoing principles of
governmental immunity have no bearing on this case because
the allegations of their claims involve proprietary
functions rather than governmental functions. Before
addressing this contention, we note that our opinion will
not address any issues of immunity to liability, as that
issue cannot be properly raised in a plea to the
jurisdiction and accordingly has no place in an
interlocutory appeal from the denial of a plea to the
jurisdiction. See Tex. R. Civ. P. 94; Jones, 8 S.W.3d at
638.

The proprietary-governmental dichotomy has been used to
determine a municipality’s immunity from suit for tortious
conduct. Tooke, 197 S.W.3d at 343. The distinction has not
been a clear one, but generally speaking, a municipality’s
proprietary functions are those conducted “in its private
capacity, for the benefit only of those within its
corporate limits, and not as an arm of the government,”
whereas its governmental functions are “in the performance
of purely governmental matters solely for the public
benefit.” Id. (quoting Dilley v. City of Houston, 222
S.W.2d 992, 993 (Tex. 1949)). A municipality is not immune
from suit for torts committed in the performance of its
proprietary functions, as it is for torts committed in the
performance of its governmental functions. Id. The Texas
Supreme Court has never held that this same distinction
determines whether immunity from suit is waived for breach
of contract claims. Id. Nevertheless, the Texas Supreme
Court has stated, “Contracts made by municipal corporations
in their proprietary capacity have been held to be governed
by the same rules as contracts between individuals.” Gates
v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex. 1986). It
has also stated that a city that contracts in its
proprietary role is “clothed with the same authority and
subject to the same liabilities as a private citizen.” Id.
Based on these statements, we proceed in our analysis with
the assumption that the proprietary-governmental dichotomy
extends to breach of contract claims.

B. Analysis

1. Proprietary-Governmental Dichotomy

The common thread between all of appellees’ claims is a
contention that appellants cannot plan and develop a
birding center on the property where Lakeview Park is
located. The alleged wrongfulness of appellants’ actions
stem from contractual rights claimed by appellees. According
to their live petition, the City of Weslaco promised
appellees that they “would never be asked to leave Lakeview
[Park], as long as they were able to care for themselves.”
Because development of the birding center under appellants’
current proposal would necessarily involve evicting
appellees from Lakeview Park, appellees have sued to stop
development of the birding center and to recover money
damages.

Appellees contend that their lawsuit challenges proprietary
functions and that there is therefore no governmental
immunity from suit. Their arguments are based largely on
the Fourth Court of Appeals’ opinion in Schertz v. Parker
and the list of governmental and proprietary functions
enumerated in section 101.0215 of the Texas Civil Practice
and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.0215 (Vernon 2005); Schertz v. Parker, 754
S.W.2d 336 (Tex.App.-San Antonio 1988, no writ).

In Schertz, the court of appeals held that “the regulation
and administration of the mobile home park by the City . .
. as authorized by the city ordinance was a proprietary
function.” Schertz, 754 S.W.2d at 340. Appellees claim that
the same result should follow in this case. We disagree.

At the outset, we note that Schertz involved immunity from
liability and not immunity from suit. Id. at 339-41. We
have already discussed the differences between the two
forms of immunity and have expressly limited our opinion to
the issue of immunity from suit, the only form of immunity
which may be properly challenged on an interlocutory appeal
from the denial of a plea to the jurisdiction. See Jones, 8
S.W.3d at 638. The distinction between the issues is
critical in this case, especially because the analysis in
Schertz was based on the city’s failure to carry the burden
of “proving and submitting” the defense of governmental
immunity to liability. Schertz, 754 S.W.2d at 340-41. In
contrast, the burden in this case was on appellees to
overcome immunity to suit by alleging jurisdictional facts
to demonstrate that their claims against appellants arose
from proprietary functions. See Jones, 8 S.W.3d at 638
(explaining that immunity to suit implicates subject matter
jurisdiction); Tex. Ass’n of Bus., 852 S.W.2d at 446
(explaining that Texas law “requires the pleader to allege
facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause”).

We are also mindful of the absence in Schertz of any
reference or discussion of section 101.0215 of the Texas
Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.0215. Although the Schertz
court concluded that the city’s regulation of a mobile home
park was proprietary and not governmental, that
determination seems to have been based largely on the
conclusion that the city had placed on itself the burden of
regulating mobile home parks, as evidenced by city
ordinances authorizing its actions. The court reasoned as
follows:

Liability will not be imposed upon a municipality if the
event sued upon occurs when the municipality is engaged in
performance of those duties which are imposed on all
municipalities, without corporate consent, and exclusively
for public purposes. See Gates v. City of Dallas, 704
S.W.2d 737, 739 (Tex. 1987). This would not be true when
the municipality imposes upon itself a special duty or
authority, as in the present case.

See Schertz, 754 S.W.2d at 340.

We need not disagree with the reasoning in Schertz to hold
that its precedent is inapplicable to the case at bar.
Having dealt strictly with the issue of immunity from
liability, Schertz provides no guidance on the issue of
immunity from suit. Furthermore, the opinion’s exclusive
reliance on common law principles to address the
proprietary-governmental dichotomy is an approach of dubious
validity given the Texas Supreme Court’s recent opinion in
Tooke. In that case, the supreme court emphasized that
“waiver of governmental immunity involves policies best
considered by the legislature.” Tooke, 197 S.W.3d at 344.
The supreme court also noted that it “could be argued that
a city lacks authority to waive its own immunity from suit
by ordinance or charter.” Id. Together, these statements
strongly indicate that the reasoning in Schertz should not
be extended to the issue of immunity to suit presented in
this appeal.

The Texas Constitution authorizes the legislature to
“define for all purposes those functions of a municipality
that are to be considered governmental and those that are
proprietary, including reclassifying a function’s
classification assigned under prior statute or common law.”
Id. at 343 (quoting Tex. Const. art. XI, § 13).
Section 101.025 of the civil practice and remedies code
contains examples of governmental and proprietary
functions. See Tex. Civ. Prac. & Rem. Code Ann. §
101.0215. Appellees point out that the list of governmental
functions does not include “operating a mobile home park.”
We agree with appellees on this point, but note that
neither does the list of proprietary functions.

The list of governmental functions does include
“community, neighborhood, or senior citizen centers.” Id.
§ 101.0215(a)(17). Although we do not conclude that
the functions in this case fit squarely within that
classification, we do find it noteworthy that appellees’
live petition refers to Lakeview Park as a “retirement
community,” a description which seems to fit at least
partly within “community, neighborhood, or senior citizen
centers.” Id.

We also find it noteworthy that appellees’ “emergency
motion for temporary injunctive order” complained of
actions by appellants that allegedly denied appellees
access to “common areas” in Lakeview Park, including the
“Green Barn” and “Red Barn,” which house recreational
equipment, including pool tables, a shuffleboard table, a
ping-pong table, and a loom for quilting. See Appellees’
EMERGENCY Motion for Temporary Injunctive Order or Order
for Remand to Consider Interim Relief p. 4. The facilities
also provide Lakeview Park residents with a common meeting
area, a community swimming pool, a laundry machine, and a
full kitchen. Id. pp. 4-5. Appellees claim that these
“items” (with the exception of the swimming pool) “were
purchased, installed, and maintained by current and former
residents of Lakeview [Park].” Id. p. 5. Regardless of this
contention, there is no question that the City of Weslaco
owns the facilities. There is also no question that the
facilities were made available as community facilities for
recreational purposes. This is especially significant
because “recreational facilities, including but not limited
to swimming pools, beaches, and marinas” are listed as
governmental functions. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.0215(a)(23).

The civil practice and remedies code also specifies that
“parking facilities” are governmental functions. Id.
§ 101.0215(a)(25). Neither our independent research
nor the parties’ briefs have yielded any prior precedent
addressing whether a mobile home park can be properly
classified as a “parking facility” under the civil practice
and remedies code. See id. We conclude that as a facility
for parking mobile homes, Lakeview Park is at least partly
covered by the “parking facility” classification. See id.

Also included as governmental functions in the civil
practice and remedies code are “parks and zoos” and
“zoning, planning, and plat approval.” See id. §
101.0215(a)(13), (29). Appellees contend that the birding
center is not a park or a zoo, but they have produced no
precedent to support their contention. Even assuming that
the birding center could not be a park, we would still be
faced with the question of whether it may be properly
considered as a “recreational facility.” See id. §
101.0215(a)(23). Again, without holding that any one of
these classifications perfectly describes the functions in
this case, we conclude that the development of a birding
center falls under the classifications of “parks and zoos,”
“recreational facilities,” and “zoning, planning, and plat
approval.” See id. § 101.0215(a)(13), (23), (29).

In sum, we have concluded that the functions at issue
relate to “community, neighborhood, or senior citizen
centers,” “recreational facilities, including but not
limited to swimming pools, beaches, and marinas,” “parking
facilities,” “parks and zoos,” and “zoning, planning, and
plat approval.” See id. § 101.0215(a)(13), (17),
(23), (25), (29). In holding that this case involves
governmental and not proprietary functions, we note that
subsection (c) of section 101.0215 states, “The proprietary
functions of a municipality do not include those
governmental functions listed under Subsection (a).” See id.
§ 101.0215(c). Having concluded that the functions
at issue fall within five of the classifications of
governmental activities listed in subsection (a), we are
precluded from holding that the activities are proprietary.
See id.

Appellees contend that this conclusion cannot follow
because representatives of the City of Weslaco admitted
that the functions at issue in this case are not
governmental. In support of this contention, appellees
offered the trial court the following deposition testimony:

Attorney for Appellees: Would you agree that operating a
mobile home park is not a city function?

* * *

Representative: I agree.

In addition, appellees relied on the following statement
made by the mayor of the City of Weslaco:

When the City of Weslaco purchased the Lakeview Mobile Home
Park, the City of Weslaco never intended to operate a
mobile home park. Home-rule cities have charters and laws
that apply to them and operating a mobile home park is not
a city function.

Based on this evidence, appellees argue that “the city
itself has admitted that operation of the park is not a
governmental function.” Brief of Appellees p. 16.

We construe the foregoing argument as one of waiver, which
brings us back to Tooke and the distinction between
immunity to suit and immunity to liability. As discussed
above, immunity to suit involves a court’s subject matter
jurisdiction. See Jones, 8 S.W.3d at 638. Subject matter
jurisdiction cannot be waived. Tex. Ass’n of Bus., 852
S.W.2d at 446 (“Subject matter jurisdiction is an issue
that may be raised for the first time on appeal; it may not
be waived by the parties.”).

Furthermore, in Tooke, the Texas Supreme Court stated that
it “could be argued that a city lacks authority to waive
its own immunity from suit by ordinance or charter.” Tooke,
197 S.W.3d at 344. Although that language may be construed
as dicta in future opinions, the same reasoning could be
applied to the present case. If a municipality has only a
limited and questionable ability to waive its immunity to
suit by formal promulgation of an ordinance or charter, a
municipality’s representative, a fortiori, has an even less
effective ability to do so through informal speech or
writings. Even this limited ability, however, assumes that
subject matter jurisdiction may be expanded through waiver
by admission, an assumption which runs contrary to
long-standing precedent. See, e.g., Tex. Ass’n of Bus., 852
S.W.2d at 446.

Finally, appellees contend that the activities in question
must be proprietary because Lakeview Park is located
outside the city limits of the City of Weslaco. We
disagree. If anything, the location of the park indicates
that the activities are governmental. After all, a
municipalities’ proprietary functions must be “for the
benefit only of those within its corporate limits.” Tooke,
197 S.W.3d at 343 (quoting Dilley, 222 S.W.2d at 993). The
parties agree that Lakeview Park is not within the City of
Weslaco’s corporate limits. It is also clear from the
allegations of the petition that appellees have reaped
benefits from appellants’ ownership and operation of
Lakeview Park. Given that appellees reside outside
appellants’ corporate limits, we cannot conclude that “only
those within” the City of Weslaco’s corporate limits
benefit from appellants ownership and operation of Lakeview
Park. See id. Thus, we do not find the location of Lakeview
Park to be a consideration that militates in favor of
classifying the functions as proprietary.

For these reasons, we conclude that governmental immunity
to suit applies to the causes of action alleged by
appellees.

2. Statutory Waiver of Immunity to Suit

As noted above, appellees also contend that immunity to
suit was legislatively waived as to the City of Weslaco by
sections 51.013, 51.033, and 51.075 of the Texas Local
Government Code. See Tex. Loc. Gov’t Code Ann.
§§ 51.013, 51.033, & 51.075. They further
contend that immunity to suit was legislatively waived as
to WDC and EDC by section 23(a)(9) of article 5190.6. Tex.
Rev. Civ. Stat. Ann. art. 5190.6, § 23(a)(9).

a. Sections 51.013, 51.033, & 51.075

In Tooke, the Texas Supreme Court held that “the words `sue
and be sued,’ standing alone, are if anything, unclear and
ambiguous. The effect of similar clauses, like `plead and
be impleaded,’ is indistinguishable, and therefore those
clauses do not, by themselves, waive immunity.” Tooke, 197
S.W.3d at 342. This is the same language used in sections
51.013, 51.033, and 51.075. See Tex. Loc. Gov’t Code Ann.
§§ 51.013, 51.033, & 51.075. Accordingly, we
cannot conclude that those statutes have waived the City of
Weslaco’s immunity to suit.

b. Section 23(a)(9) of Article 5190.6

A similar result follows under section 23(a)(9) of article
5190.6. Tex. Rev. Civ. Stat. Ann. art. 5190.6, §
23(a)(9). That statute uses the language “sue and be sued,
complain and defend, in its corporate name.” Id. In Tooke,
the Texas Supreme Court cited a similar provision in
article 5190.6 and stated that it has “nothing to do with
immunity at all.” Tooke, 197 S.W.3d at 341-42 n. 74 (citing
Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 5 (D)(I)
(stating that an industrial development corporation “may
sue and be sued”)). Following Tooke, we conclude that no
immunity to suit was waived by section 23(a)(9) of article
5190.6.

III. Conclusion

The activities complained of in this lawsuit are
governmental functions and are therefore protected by
governmental immunity. Appellees have failed to demonstrate
that immunity to suit has been waived. We therefore
conclude that the trial court lacks subject matter
jurisdiction to hear the claims alleged against appellants.
We reverse the order denying appellants’ pleas to the
jurisdiction and render a judgment dismissing appellees’
claims.

[fn1] WDC and EDC claim entitlement to governmental immunity
based on Texas Revised Civil Statute Annotated article
5190.6 (Vernon Supp. 2006), commonly known as the
Development Corporation Act of 1979. The Act expressly
extends governmental immunity to economic development
corporations. See id. § 4B(m) (“[T]he corporation is
a governmental unit and its actions are governmental
functions.”); Purdin v. Copperas Cove Econ. Dev. Corp., 143
S.W.3d 290, 295 (Tex.App.-Waco 2004, pet. dism’d); Rayl v.
Borger Economic Dev. Corp., 963 S.W.2d 109 (Tex.App.
— Eastland 1998, no pet.). Appellees contend that
governmental immunity does not extend to WDC and EDC. Their
contentions in this regard are focused largely on the
inapplicability of section 4A(j) of article 5190.6. See
Tex. Rev. Civ. Stat. Ann. art. 5190.6 (Vernon Supp. 2006).
They also argue that WDC does not enjoy governmental
immunity because it was created before article 5190.6 was
enacted. We disagree with these contentions. Section 4B(m)
grants WDC and EDC governmental immunity. We therefore do
not need to address appellees’ contentions that section 4A
is inapplicable, as the two sections of article 5190.6
contain functionally equivalent terms on governmental
immunity. Furthermore, we have no basis for limiting the
scope of article 5190.6 to corporations created after its
enactment and accordingly decline to do so. Having
concluded that governmental immunity extends to WDC and EDC,
we now turn to the parties’ respective arguments on whether
the trial court erred in denying the pleas to the
jurisdiction filed by the City of Weslaco, WDC, and EDC.