### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00165- CV

City of Segui n, Texas, App ellant

v. Low er C olorado River Authority, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 3-0 0043 3, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The City of Seg uin, Texas filed this interlocutory appea l from the trial court’s denial of its plea to the jurisdiction. Seg uin contends that g overnme ntal immunit y shields it from a suit by the L ower Colorado River Authority reg arding a wholesale elec tric power contra ct. We will aff irm the orde r deny

ing the plea to the jurisdiction. Ac co rd ing to the pleading s, the L CRA enter ed wholesale power ag ree ments (“WPAs”) to sell elec trical power to entities including the cities o f S egu i n and Georg etown. The entities then sold the power to reta il customers. The WP As are long- term ag ree ments set to expire

on J une 25, 2016. By letter dated J une 28, 2012, howeve r, Seg uin, Geor g etown, and other cities and entities decla

red that the L CRA had brea ched the WP As and t h at t h e l etter’ s signa tories would terminate the WP As unless the L CRA cured its bre ach w ithin 30 day s.

T h e L CR A f il e d this suit for injunctive relief ag ainst the J une 28th letter’s signa tori e s ,

as well as a decla

ration that the L CRA did n ot brea ch the WP As and that the J une 28th letter’ssignatories wer e not entitled to unilatera lly terminate the WP As. At differ ent times, Geor g etown and

Seg uin filed separate , but essentially identical, plea s to the jurisdiction. I n their re sponses to both of these pleas, the L CRA arg ued that g overnme ntal immunit y d i d n o t protec t the cities beca use (1) the claims conce rned their actions in perf orming proprieta

ry functions, not g overnme ntal ones, and (2) any g overnme ntal immunit y that might have attache d was waived by L o ca l Go vernme nt Code section 271.152. At separ ate times, the trial court denied both cities’ pleas to the jurisdiction 1 without stating a basis, and sever ed the claims ag ainst both cities into new cause s of action distinct from the or igina l suit and from ea ch other . Both c ities appea led.

I n Geor g etown’s appea l, a majority of the panel aff irmed the denial of Geor g etown’s plea to the jurisdiction. See City of George town, Tex. v. Lower Colo. River Auth. , No. 03-12-00648- CV, 2013 WL 4516110, at *1 (Tex. App.—Austin Aug

. 23, 2013, pet. filed). Id

. T h e m aj o rity conclude d (1) that under the common law, go v er n m ental immunit y did not arise to protec t municipalities from suits based on contra cts enter ed when perf orming proprieta

ry functions, (2) that L ocal Go v er n ment Code section 271.152 did not abrog ate the exclusion from immunit y for suits arising from proprieta

ry functions, (3) that Geor g etown acte d in its proprieta ry capa city when it

en t er ed the WP A with the L CRA, and (4) that, there fore , Geor g etown had no g overnme n t al immunit y from the L CRA’s claims and that the trial court did not err in denying Geor g etown’s plea to the jurisdiction. Id. at 9.

The L CRA a lso or igina lly arg ued that g overnme ntal immunit y did not apply beca use the 1 L CRA soug ht only decla

ratory relief

, not any control over or damag es from Seg uin. By the time the trial court denied the plea to t h e jurisdiction, howeve r, the L CRA had amende d its pleading s to include a reque st for damag es for brea ch of contra ct, neg ating this third g round for deny ing the plea. 2The claims and arg uments in this ca s e are simil ar. I n this suit, which rema ined at

the trial level afte r Geor g etown’s appea l w as filed, the L CRA a dded claims for brea ch of contra ct, relianc e, promiss o ry es t o p pel, and brea ch of the duty of g ood faith and fair dealing befor e the trial court signe d a written order deny ing the plea, but the L CRA then dropped all but the brea ch-of

contra ct claim by the time Seg uin filed its notice of appea l. Seg uin made some arg um en t s i n its briefs and in oral arg ument that wer e not prese nt in the Geor g etown case . Th es e additional arg uments attempt to distinguish case s and offe r policy arg uments for wh y ci t i es do or should have immunit y from suit reg arding actions taken—including contra cts made—in further ance of proprieta ry functions. The L CRA’s additional contra ct claim and th e a d d it io n a l a r g u me n ts by Seg uin do not persua de us to depar t from the rea soning of the majority in the Geor g etown case . See id. We also see no rea son to reiter ate its rea soning at leng th here

. See Tex. R. App. P. 47.1 (opinions should be “a s brief a s prac ticable” ).

We affir m the trial court’ s denial of the City of Seg uin’s plea to the jurisdiction.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: January

15, 2014

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