Texas Supreme Court holds immunity waived for arbitration clauses, but only a court can decide the immunity question
San Antonio River Authority v Austin Bridge & Road, L.P., 17-0905 (Tex. May 1, 2020)
In this construction contract dispute, the Texas Supreme Court held Chapter 271 of the Texas Local Government Code waives immunity for arbitration clauses.
The San Antonio River Authority (“Authority”) hired Austin Bridge and Road L.P. (“ABR”) to perform repairs of the Medina Lake Dam. Disagreements about scope of work and payment arose. ABR triggered the arbitration provision in the contract. When the arbitrator denied the Authority’s assertion it was immune, it sued ABR in district court seeking a declaration the Authority lacked the ability to waive immunity for arbitration. The trial court denied the Authority’s summary judgment. The court of appeals reversed in part, holding that while the arbitration provision was enforceable, only a court could determine immunity was waived. The Authority appealed.
Until the waiver in Chapter 271 existed, governmental immunity shielded a local government from enforcement of its contract obligations. Currently, § 271.154 expressly provides that arbitration agreements are enforceable. The term “Adjudication” in Chapter 271 means “the bringing of a civil suit and prosecution to final judgment . . . and includes the bringing of an authorized arbitration proceeding…” Further, an arbitration is an “adjudication procedure” under the plain meaning of the statute. However, immunity is waived only to the extent authorized by Chapter 271. As a result, the Authority was authorized to agree to arbitrate disputes arising from its contract with Austin Bridge, within Chapter 271’s expressed limits. However, the Court agreed with the court of appeals and held only the judiciary has a non-delegable duty to determine whether immunity has been waived. Because immunity bears on the trial court’s jurisdiction to stay or compel arbitration, and to enforce an arbitration award in a judgment against a local government, a court must decide whether governmental immunity is waived. An agreement to arbitrate is unenforceable against a local government to the extent it purports to submit immunity questions to an arbitrator. The Court then analyzed the contract and determined that while the contract was for the benefit of the River District, it also provided a benefit to the Authority, and the Authority is the entity that entered into the contract. As a result, in this situation, the Authority’s immunity is waived. The Court held the decision of whether ABR is seeking actual damage or consequential damages is not factually developed; however, ABR at last pled some possibility the damages sought are actual damages.
If you would like to read this opinion, click here. Justice Bland delivered the opinion of the Court. Dissent filed by Justice Boyd, joined by Chief Justice Hecht and Justices Guzman and Devine.