the Texas Supreme Court has consistently held that a governmental entity does not waive immunity from suit by
accepting the benefits of a contract. See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007);
Little-Tex, 39 S.W.3d at 598; Catalina Dev. Co., 121 S.W.3d at 705-06; Travis County v. Petzel & Assocs., Inc.,
77 S.W.3d 246, 248 (Tex. 2002); IT-Davy, 74 S.W.3d at 860. We decline the invitation to depart from these
authorities and therefore re-affirm that, even if the Port derived benefits from a contract to which it was not a
party, the Port did not thereby waive its immunity from suit.
C. “Sue and Be Sued"
The Port is a navigation district and political subdivision of the State. City of Seabrook, 199 S.W.3d at 404. The
Legislature created the Port in 1927 pursuant to article III, section 52, of the Texas Constitution. In 1957, the
Legislature converted the Port into an article XVI, section 59 district. While the converted district was to
operate under article XVI, section 59, it retained all powers conferred upon it through article III, section 52. See
Tex. Water Code Ann. §60.246 (Vernon 2004); Act of Apr. 11, 1957, 55th Leg., R.S., ch. 117, §2, 1957 Tex.
Gen. Laws 241, 247.
Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Brown)
An article-III-section-52 navigation district is governed by chapter 61 of the Texas Water Code. See Tex. Water
Code Ann. ' 61.021 (Vernon 2004). Chapter 61 provides that such a navigation district “may sue and be sued
in any court in this state in the name of the district." See id. § 61.082(a). Chapter 62, which applies to article-
XVI-section-59 navigation districts, contains a similar provision stating that a navigation district may “sue and be
sued" in the name of the district. See id. §§ 62.021, 62.078(a). Father argues that these statutes clearly and
unambiguously signal a legislative intent to waive a navigation district's governmental immunity from suit. We
In 1970, the Texas Supreme Court held that such “sue and be sued" language granted legislative consent for
lawsuits against navigation districts. See Mo. Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812,
813 (Tex. 1970). The majority of appellate courts, including this Court, relied on Missouri Pacific to conclude
that “sue and be sued" language indicated a “sufficient pronouncement of legislative intent to waive immunity
from suit." See, e.g., Tomball Hosp. Auth. v. Harris County Hosp. Dist., 178 S.W.3d 244, 251-53 (Tex. App.-
Houston [14th Dist.] 2005, pet. granted).
That reliance proved misplaced in 2006, when the Texas Supreme Court overruled Missouri Pacific:
Accordingly, we conclude that Missouri Pacific must be, and now is, overruled. . . . [T]he holding of Missouri
Pacific that “sue and be sued," by itself, in an organic statute always waives immunity from suit is simply
incorrect. The phrase is often used to mean only that an entity has the capacity to sue and be sued in its own
name. Because the phrase means different things in different statutes, it cannot be said to be clear and
unambiguous. As we have seen, 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 (emphasis added).
Although Tooke rung the death knell for Missouri Pacific, Father nonetheless urges us to resuscitate it and
conclude that the Legislature consented to the suit. When this lawsuit was filed in 2002, he argues, “there was
no doubt that" the Port's immunity had been waived under the rationale of Missouri Pacific. Then, in 2005, the
Legislature enacted a statute providing for a limited waiver of a governmental entity's immunity for entering into
certain types of contracts. See Tex. Loc. Gov't Code Ann. § 271.152 (Vernon 2005). The enacting legislation
provided that “[a] claim that arises under a contract executed before the effective date of this Act and with
respect to which sovereign immunity has been waived is governed by the law in effect on the date the contract
was executed, and the former law is continued in effect for that purpose." Act of May 23, 2005, 79th Leg., R.S.,
ch. 604, § 2, 2005 Tex. Gen. Laws 1548, 1549 (emphasis added). The effect of this 2005 legislation, Father
argues, was to preserve the Missouri Pacific waiver of the Port's immunity notwithstanding the Texas Supreme
Court's subsequent pronouncement in Tooke.
We must reject this argument for at least three reasons.
First, it is debatable whether the 2005 legislation even applies to Father's claims against the Port. The
legislation's limited waiver of immunity provides:
A local governmental entity that is authorized by statute or the constitution to enter into a contract and that
enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of
adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.
Tex. Loc. Gov't Code Ann. § 271.152 (emphasis added). A “contract subject to this subchapter" is defined as “a
written 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." See id. ' 271.151(2).
However, the Port did not enter into a “contract subject to this subchapter."
It is uncontroverted that the Port was not a nominal party to the Seureaus' Letter Agreement with ExxonMobil
and, thus, it is beyond question that the Letter Agreement was not "properly executed on behalf of" the Port.
See id. Nor may the Letter Agreement be construed, even liberally, as “providing goods or services" to the
Port. See id. Therefore, because the Port did not enter into a contract subject to the 2005 legislation, the
provision that perpetuates former immunity waivers as to claims governed by subchapter I does not apply here.
See Act of May 23, 2005, 79th Leg., R.S., ch. 604, §2, 2005 Tex. Gen. Laws 1548, 1549.
Second, we cannot accept the premise of Father's argument that, when the lawsuit was filed in 2002, Missouri
Pacific had already waived the Port's immunity. It is for the Legislature, not the judiciary, to waive a
governmental entity's immunity to suit. IT-Davy, 74 S.W.3d at 854. Thus, in Missouri Pacific, the Texas
Supreme Court did not create a separate judicial exception to waiver, but rather interpreted a “sue and be sued"
statute as a legislative waiver of immunity. Missouri Pacific, 453 S.W.2d at 813. In Tooke, the Texas Supreme
Court recognized that its previous statutory construction in Missouri Pacific "is simply incorrect," and that the
Legislature's use of the words “sue and be sued" does not clearly and unambiguously waive immunity. Tooke,
197 S.W.3d at 342.
Thus, when the Seureaus filed their lawsuit in 2002, the Legislature had not waived the Port's immunity by using
“sue and be sued" language in statutes governing navigation districts. See id. Even had Tooke effected a
change in the law, the Texas Supreme Court's decision applies retroactively. See Bowen v. Aetna Cas. & Sur.
Co., 837 S.W.2d 99, 100 (Tex. 1992); Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 162 (Tex. App.-
Houston [14th Dist.] 1996, writ denied); see also Whole Foods Mkt. Sw., L.P. v. Tijerina, 979 S.W.2d 768, 773
(Tex. App.- Houston [14th Dist.] 1998, pet. denied) (requiring courts to render decisions in light of changes in
Third, even before Tooke was issued in 2006, there was considerable debate among Texas courts as to
whether the words “sue and be sued," or similar language, by themselves waived immunity. See Tooke, 197 S.
W.3d at 338-39 (surveying appellate courts' response to Missouri Pacific); Tomball Hosp. Auth., 178 S.W.3d at
251-52 (same). In overruling Missouri Pacific, the Texas Supreme Court noted the varying treatment of its
authority by Texas appellate courts, and concluded that A[b]ecause the phrase means different things in
different statutes, it cannot be said to be clear and unambiguous." Tooke, 197 S.W.3d at 342. Thus, we cannot
accept Father's contention that in 2002 there was “no doubt” that the Legislature had waived the Port's
immunity from suit.
Accordingly, we hold that the “sue and be sued" language found in chapters 61 and 62 of the Texas Water
Code does not clearly and unambiguously waive the Port's immunity from suit.