Texas Supreme Court holds Type B economic development corporations are not entitled to immunity for breach of contract claims
Rosenberg Development Corp. v. Imperial Performing Arts, Inc., No. 17-0660 (Tex. – March 9, 2019).
The Texas Supreme Court holds Type -B EDCs are not entitled to governmental immunity in breach of contract cases.
Rosenberg Development Corporation (RDC) is a Type B economic development corporation created by the City of Rosenberg. RDC executed a contract with Imperial Performing Arts, Inc. (Imperial), a nonprofit organization for performance and visual art activities, including reopening a local arts center and theater. However, the reopening and renovations exceed the agreed amounts by over ten fold. RDC and Imperial filed suit and counterclaims. The immunity issue addressed the breach of contract claims. RDC filed a plea to the jurisdiction, which was denied as to Imperial’s contract claim, and was affirmed by the court of appeals. RDC filed for discretionary review.
The threshold issue for the Court was whether RDC—a municipality’s statutorily authorized corporate creation—is immune from suit under the common law even though RDC is neither a sovereign entity nor a political subdivision of the state. The Development Corporation Act (Title 12, Subtitle C1 of the Local Government Code) authorizes municipalities to create such EDC corporations. The Court analyzed the Act, its purpose, and its language. The Court noted that for the purpose of interlocutory appeals, the RDC qualifies given the specific definition in the Texas Tort Claims Act. The Court then noted the Development Corporation Act does not speak to governmental immunity directly, but in §505.106, the Legislature has declared that (1) a Type B corporation is “not liable for damages arising from the performance of a governmental function of a Type B corporation or the authorizing municipality,” and (2) “[f]or purposes of Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a governmental unit and the corporation’s actions are governmental functions.” Notably, however, an economic development corporation “is not a political subdivision or a political corporation for purposes of the laws of this state …” and the Legislature has forbidden authorizing municipalities from bestowing on the corporation any “attributes of sovereignty.” As to the RDC’s argument it obtains statutory immunity from suit and liability, the Court held “[b]ecause section 505.106 merely purports to limit the remedies available when economic development corporations perform governmental functions, we need not consider whether the Legislature can confer immunity by statute or only waive it.” Where the governing statutory authority demonstrates legislative intent to grant an entity the “nature, purposes, and powers” of an “arm of the State government,” that entity is a government unit unto itself and is entitled to assert immunity in its own right. The Court analyzed cases where governmental self-insurance risk pools have been determined to be governmental entities and determined what is required to qualify as a governmental unit unto itself. While promoting and developing business enterprises and job training is a public purpose merely engaging in such an act does not, ipso facto, make the actor a governmental unit. The common-law rule of immunity is exclusively for the judiciary to define, and in doing so, the Court does not just consider whether the entity performs governmental functions, but also the “nature and purposes of immunity.” Granting immunity to an EDC is not necessary to satisfy the political, pecuniary, and pragmatic policies underlying our immunity doctrines. Further, the Legislature simply did not grant these entities “powers of government” to perform essential governmental functions or activities. Also, since the Act already limits liability and damage’s exposure, the fiscal analysis used to determine if an entity is governmental is not applicable. Ultimately, the Court held “that the Legislature did not authorize municipalities to create economic development corporations as distinct governmental entities entitled to assert immunity in their own right.”
Chief Justice Hecht wrote separately only to point out the highly unusual features of a Type B municipally-created economic development corporation. While he agreed an EDC is not a governmental unit by itself, an EDC is not liable for damages arising from the performance of its governmental functions for purposes of the Texas Tort Claims Act. Since the TTCA only waives immunity, he opines an EDC has immunity from suit and liability for tort claims. In dicta, the Chief Justice noted that since an EDC’s expenditures must be approved by its municipality, a judgment against an EDC in any circumstance may not be enforceable.
If you would like to read this opinion click here. Justice Guzman delivered the opinion of the court. Chief Justice Hecht filed a concurring opinion, found here. The docket page with attorney information can be found here.