Waco Court of Appeals held that a contract for a Water District to provide water services to a customer is not a contract that waives governmental immunity under Chapter 271 of the Local Government Code.

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Mclennan County Water Control and Improvement Dist. v. Matthew and Rachel Geer, et. al, 10-17-00399-CV (Tex. App.—Waco, July 22, 2020).

In this governmental immunity case, the Waco Court of Appeals dismissed the case against the Water District because the plaintiff failed to allege a cause of action that waives governmental immunity for breach of contract (Chapter 271 of the Local Government Code) or for negligence (Texas Tort Claims Act) for actions surrounding the turning off of the plaintiffs’ water by the District.

The plaintiffs are owners of property in the Water District.  The Water District turned off the plaintiffs’ water after it was discovered that the plaintiffs had two buildings hooked up to the same meter.  The Water District also sent an employee to the plaintiffs’ property and took pictures on-site without the plaintiffs’ consent.  The plaintiffs’ sued the Water District for breach of contract for turning off their water and for trespass under the Tort Claims Act for entering their property without permission.  The trial court denied the Water District’s plea to the jurisdiction and the Water District appealed.  The Court of Appeals held that the District’s governmental immunity had not been waived and dismissed the case.

To present a claim for breach of contract that waives immunity under Texas Local Government Code Chapter 271, a plaintiff has to allege that the contract in question is a contract “stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.”  Tex. Loc. Gov’t Code        § 271.151.  To present a claim under the Tort Claims Act, the claim has to be based on a negligent, not intentional act.  Tex. Civ. Prac. & Rem. Code § 101.021. The Court of Appeals held that a contract for water service where the service is provided by the Water District to an individual is not a contract for which immunity is waived under Chapter 271 because the Water District is not contracting to receive goods or services.  The Court also held that the intentional act of entering someone’s property without permission is not a valid claim under the Tort Claims Act, because the Tort Claims Act is for negligent acts.

If you would like to read this opinion click here.  Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Chief Justice Gray.