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City of Pharr v. Garcia

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 8, 2019

CITY OF PHARR, TEXAS Appellant,
v.
ROGELIO SOTO GARCIA, Appellee.

          On appeal from the 139th District Court of Hidalgo County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes

          OPINION

          GREGORY T. PERKES, JUSTICE

         Appellee Rogelio Soto Garcia filed suit against appellant City of Pharr, Texas (City), alleging that the City breached a settlement agreement and that the City's governmental immunity was waived under Texas A & M University-Kingsville v. Lawson and Chapter 271 of the Texas Local Government Code. The trial court denied the City's plea to the jurisdiction. On interlocutory appeal, the City argues that neither Lawson nor Chapter 271 applies. We affirm.

         I. Background

         Garcia was employed by the City as Community Events Director. The City asked Garcia to take a hair follicle drug test, and he refused, alleging the City's conduct violated his Fourth Amendment right against unreasonable searches. Instead, Garcia resigned in what he characterizes as a constructive discharge.

         Within a month of his separation and before Garcia filed suit, the parties executed a "Mutual Separation Agreement and Release" (the Settlement Agreement). Under the Settlement Agreement, the City agreed to pay Garcia $8, 205.84 in exchange for Garcia's agreement to release numerous state and federal claims against the City, including those arising under 42 U.S.C. § 1983. The Settlement Agreement described Garcia's release as "a material inducement" for the City's payment.

         The Settlement Agreement also contained a non-disparagement provision prohibiting the City and Garcia from "making false, misleading or disparaging statements or representations" about the other party. The City allegedly breached this provision when a City official made statements that Garcia "flunked a drug test" and "was dirty," affecting his ability to obtain new employment. Garcia filed suit for breach of the Settlement Agreement. The City filed a plea to the jurisdiction based on Garcia's pleading, and the trial court denied the plea. This interlocutory appeal ensued. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).

         II. Applicable Law & Standard of Review

         Generally, governmental immunity protects the state's political subdivisions from suits for money damages. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). It has two components: immunity from suit, and immunity from liability. Id. (citing Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001)). A governmental unit waives immunity from liability when it contracts with a private party, but immunity from suit must be waived by legislative enactment or constitutional provision. Id. (citing Little-Tex, 39 S.W.3d at 594). "[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language." Tex. Gov't Code Ann. § 311.034.

         Immunity from suit deprives a trial court of subject matter jurisdiction and may be raised in a plea to the jurisdiction. Williams, 353 S.W.3d at 133. It is the plaintiff's burden to plead facts that affirmatively demonstrate the trial court's subject matter jurisdiction. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). Because the City's plea to the jurisdiction was based on Garcia's pleadings, we accept the pleaded facts as true, and construe the pleadings liberally to determine whether Garcia established a waiver of governmental immunity. See id. (citing Tex. Air Control Bd., 852 S.W.2d at 446). The trial court's subject matter jurisdiction is a question of law we review de novo. See Williams, 353 S.W.3d at 133 (citing Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002)).

         III. Analysis

         Garcia alleged in his petition that the City's immunity was waived under Texas A & M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002) (plurality op.).[1] The City contends on appeal that Lawson does not apply because: (1) unlike Lawson, the Settlement Agreement did not settle a pending lawsuit; and (2) regardless, the Settlement Agreement did not settle any underlying claim for which immunity had been waived. We conclude Lawson does apply.

         In Lawson, the plaintiff sued the university after he was terminated, alleging various causes of action, including a violation of the Whistleblower Act. Id. at 518-19. The Whistleblower Act contains a clear and unambiguous waiver of immunity. See Tex. Gov't Code Ann. § 554.0035. The parties settled the case and the plaintiff brought a subsequent suit alleging the university breached the settlement agreement. Lawson, 87 S.W.3d at 519. The university argued that any breach of the settlement agreement was a separate claim barred by immunity. Id. The supreme court disagreed: "[W]e hold that, having waived immunity from suit in the ...


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