TML/TCAA Legal Defense Program: Amicus Briefs and Comments Filed

TCAA, in conjunction with the Texas Municipal League, files amicus briefs and comments in support of cities on many issues. To keep up to date on the status of these issues, go to

Contractual Immunity: City of Austin v. Met Ctr. Nyctex Phase II, Ltd., No. 14-0162 in the Supreme Court of Texas.  TML and TCAA filed an amicus brief in support of the City of Austin.  Met Center constructed a specialized conduit system known as an “underground duct bank system” to carry high levels of electric service required by technology-based users on Austin Energy’s electric distribution lines.  Met Center filed suit against the City of Austin asserting breach of contract over the use of the duct bank.  The city filed a plea to the jurisdiction in the trial court asserting that: (1) it is immune from Met Center’s breach of contract claim because Section 271.152 of the Local Government Code, which provides a limited waiver of immunity for certain contracts the city enters into, does not apply to the contract in this case, and (2) Met Center’s claims for declaratory relief are merely an attempt to circumvent the city’s immunity to the breach of contract claims.  The trial court denied the city’s plea to the jurisdiction, and the city appealed that decision.

The Austin Court of Appeals confirmed its prior decision in City of Georgetown v. Lower Colorado River Authority,413 S.W.3d 803 (Tex. App.—Austin 2013, pet. filed)that the governmental/proprietary dichotomy applies in the contractual setting.  The court concluded that the city was acting in its proprietary capacity when it agreed with Met Center on the underground duct bank electrical system. Therefore, the court concluded that the City of Austin has no governmental immunity from Met Center’s claims.  The TML and TCAA brief focused the Texas Supreme Court’s attention on four key points: (1) public policy favors governmental immunity; (2) the Texas legislature has provided a limited waiver of governmental immunity in the contractual setting; (3) the growing split among courts of appeal needs to be resolved; and (4) the governmental/proprietary dichotomy is unworkable in the absence of legislative guidance.  The brief was filed on June 6, 2014.