State Bar Section Report School Law
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State Bar Section Report School Law Newsletter Coeditors Editorial Review Board Fall 2004 Michael Shirk Cheryl T. Mehl Chris Elizalde Vol. 6, No. 3 Miles T. Bradshaw Derrell A. Coleman Angela G. Bishop Carolyn Hanahan Julie Leahy Robert J. Young Greetings School Law Section Members! First of all, let me thank you for your membership in the School Law Section. The section fosters collaboration and quality legal education for members of the school law community. You can help by your continued participation in the section. We also need you to encourage colleagues to join the section. You can also help by either contributing or suggesting topics and/or authors for our newsletter. Our editors have done an outstanding job putting this issue together, but they need your help to continue the high quality of work for which our publication is known. One of the projects just authorized by the section council was a proposal by newsletter Co-Editor, Michael Shirk to hold a writ- ing competition for law students interested in writing topics on school law. Another project underway is a rewrite of the section’s governance documents. Among the subjects under considera- tion will be a proposal to move our official business meeting at which officers and directors are selected from the annual meeting of the state bar to our retreat. While we feel that more of our members participate in the retreat than our meeting at the state bar annual meeting, we want to increase interest in our section by continuing to have a strong presence at the annual meeting. Please mark your calendars now for our next school law section retreat, which will be held at the Woodlands Resort & Conference center just north of Houston on July 22 and 23, 2005. Council members Joy Baskin and Christopher Gilbert have volunteered to put the program together. If you have ideas for topics or presenters, I am sure they would appreciate your input. Council member Daniel Ortiz has volunteered to coordinate the annual golf tournament at the retreat. Feel free to contact me if you have any suggestions for our newsletter, the retreat, or our section. I look forward to working with you. Lonnie F. Hollingsworth, Jr. Chair State Bar School Law Section SCHOOL LAW SECTION 2004-2005 OFFICERS AND COUNCIL MEMBERS OFFICERS Chair Secretary - Treasurer Immediate Past Chair Lonnie F. Hollingsworth, Jr. Kevin Lungwitz Lynn Rossi Scott Texas Classroom Teachers Texas State Teachers Association Bracewell & Patterson, L.L.P. Association 316 W. 12th Street 500 N. Akard, Suite 4000 P. O. Box 1489 Austin, TX 787016300 Dallas, Texas 75201 Austin, TX 78767 [email protected] 214/758-1091 512/477-9415 [email protected] [email protected] Shellie Hoffman Crow, Treasurer Walsh, Anderson, Brown, Schulze & Chair-Elect Aldridge, P.C. Wayne D. Haglund P.O. Box 2156 Law Office of Wayne D. Haglund, PC Austin, Texas 78768-2156 P. O. Box 713 512/454-6864 Lufkin, TX 75902 [email protected] 936/639-0007 [email protected] DIRECTORS Joy Surratt Baskin Christopher Gilbert Ann Manning Texas Association of School Boards Bracewell & Patterson, L.L.P. McWhorter, Cobb & Johnson, L.L.P. P. O. Box 400 711 Louisiana, Suite 2900 P. O. Box 2547 Austin, Texas 78767-0400 Houston, Texas 77002-2781 Lubbock, Texas 79408 800/580-5345 713/221-1372 806/762-0214 [email protected] [email protected] [email protected] Miles T. Bradshaw Elneita Hutchins-Taylor Daniel Ortiz Feldman & Rogers, L.L.P. Houston ISD Ortiz & Associates 5718 Westheimer, Suite 1200 3830 Richmond Ave 715 West Abram Houston, Texas 77057 Houston, Texas 77027 Arlington, Texas 76013 713/960-6029 713/892-6307 817/861-7984 [email protected] [email protected] [email protected] Sandra Carpenter-Houston Jon McCormick Arlington I.S.D. ADAMS, LYNCH & LOFTIN, P.C. 1203 W. Pioneer Parkway 1903 Central Dr., Suite 400 Arlington, Texas 76103 Bedford, Texas 76021-5813 817/459-7398 817/283-7742 [email protected] [email protected] 3 THE KING HAS BEEN KNOWN TO ERR: Satterfield & Pontikes Const., Inc. v. Irving Independent School District Christopher D. Kratovil Hughes & Luce, LLP Dallas, Texas Introduction mental immunity against suit for breach of contract, the Sat- terfield majority broke with over a century of Texas practice As Miles Bradshaw pointed out in the Winter 2004 and precedent. Since at least 1897, Texas school districts have issue,1 a pitched battle is presently raging across Texas been judicially accountable for their contractual obligations between school districts and those who regularly do business just like everyone else. The reported cases treating school dis- with them. At stake is the right of teachers, contractors, and tricts as potentially liable for breach of contract are in fact vendors—or anyone else contracting with Texas public legion.4 schools—to sue school districts for any breach of contract. People and businesses who regularly contract with school dis- II. Authority from Both the Texas Supreme Court and tricts fear that they will soon be left without legal recourse or the United States Supreme Court Supports Allowing remedy when confronted with a breach of contract by a dis- School Districts to “Be Sued.” trict. In contrast, the school districts perceive an opportunity to acquire a valuable new form of governmental immunity The well-established Texas practice of allowing school and thereby preserve their limited and ever-dwindling finan- districts to be sued for breach of contract was reinforced by— cial resources. In other words, the stakes are high and, on the but not created or started by—the Texas Supreme Court’s surface at least, both sides have compelling arguments. decision in Missouri Pacific Railroad v. Brownsville Naviga- tion District, 453 S.W.2d 812, 813 (Tex. 1970) (hereinafter As this pitched legal battle has spread throughout the “MoPac”). The statutory phrase that the Supreme Court inter- state, both sides have claimed victories and endured defeats. preted in MoPac, “sue and be sued,” has been continuously Perhaps most notably, a sharply divided Dallas Court of applied to Texas school districts by the Legislature since at Appeals has fully immunized school districts within its juris- least 1893. See 1893 Tex. Gen. Laws 197 through the current diction from suits in contract. Satterfield & Pontikes Con- TEX. EDUC. CODE § 11.151. Interpreting this identical statuto- struction, Inc. v. Irving Independent School District, 123 ry phrase in the context of another political subdivision of the S.W.3d 63 (Tex. App.—Dallas 2003, pet. filed). More recent- state - a navigation district -the Supreme Court found “sue ly, the similarly divided Beaumont Court of Appeals has and be sued” to be “quite plain” and to “give[ ] broad gener- accepted the Satterfield majority’s reasoning in a non-school al consent for the District to be sued in the Courts of Texas in district context. See, City of Roman Forest v. Stockman, 2004 the same manner as other defendants.” MoPac, 453 S.W.2d at Tex. App. LEXIS 6931 (Tex. App. —Beaumont, July 24, 813. 2004). However, these two victories for governmental immu- nity appear to cut against the great weight of authority from The Supreme Court’s reading of the phrase “sue and be the other Texas Courts of Appeals.2 sued” as a waiver of governmental immunity to suit has been echoed and applied by the Texas intermediate courts of As Mr. Bradshaw predicted, the Dallas Court’s Satter- appeals in a wide variety of contexts and to various types of field decision has now journeyed to Austin, where the Texas political subdivisions.5 Supreme Court has requested and received full merits brief- ing3. As evidenced by the numerous amicus curiae briefs that Perhaps more importantly, the Texas Supreme Court’s have been filed there is a profound interest in the outcome of interpretation of “sue and be sued” is entirely consistent with this case: if the Supreme Court allows the majority decision the United States Supreme Court’s reading of the identical in Satterfield to stand, contracts entered into by school dis- statutory phrase. Indeed, the unanimous United States tricts will no longer be judicially enforceable anywhere in Supreme Court has recently reconfirmed that a “sue-and-be- Texas. sued clause waives immunity, and makes the [governmental entity] amenable to suit, as well as the incidents of judicial Mr. Bradshaw’s piece did a fine job of presenting an process.” United States Postal Serv. v. Flamingo Indus.,__ introduction and overview of this critical issue — albeit while U.S. __, 124 S.Ct. 1321, 1327 (2004) (citing Loeffler v. expressing a fair degree of sympathy for the school districts’ Frank, 486 U.S. 549, 565 (1988) and Federal Housing pro-governmental immunity position. It is the intention of Adminstration v. Burr, 309 U.S. 242, 245 (1940)).6 this article to attempt as fine a job while expressing an equal- ly fair amount of sympathy for those who enter into contracts III. The Legislature Has Endorsed Reading “Sue and Be with school districts. Sued” as a Waiver of Governmental Immunity. I. Texas Has Long Allowed School Districts to Be Sued The Dallas Court of Appeals accepted the school dis- in Contract. trict’s argument that the words “sue and be sued” have an alternate meaning other than to authorize school districts to The question before the Texas Supreme Court as pre- “be sued.” The Court found that the phrase simply acknowl- sented in the Satterfield appeal is whether school districts edges the incorporeal existence of school districts and the enjoy immunity from suit for causes of action sounding in possibility that they could be sued if there were separate contract.