LTTS Charter School, Inc. v. C2 Construction, Inc.
LTTS Charter School, Inc. v. C2 Construction, Inc.
Opinion of the Court
delivered the opinion of the Court,
Since 1995, open-enrollment charter schools have been a part of the Texas public-school system. These nontraditional public schools, created and governed by Chapter 12 of the Education Code, receive government funding and comply with the state’s testing and accountability system, but they operate with greater flexibility than traditional public schools, in hopes of spurring innovation and improving student achievement.
This interlocutory appeal poses a narrow issue: Is an open-enrollment charter school a “governmental unit” as defined in Section 101.001(3)(D) of the Tort Claims
I. Background
LTTS Charter School, Inc., d/b/a Universal Academy, is an open-enrollment charter school that retained C2 Construction, Inc. to build school facilities at a site Universal Academy had leased. C2 filed a breach-of-contract suit, and Universal Academy filed a plea to the jurisdiction claiming immunity from suit. The trial court denied the plea, and Universal Academy brought an interlocutory appeal under Section 51.014(a)(8) of the Civil Practice and Remedies Code. In the court of appeals, C2 moved to dismiss the interlocutory appeal, arguing Universal Academy was not entitled to one because it is not a “governmental unit” under the Tort Claims Act.
We granted Universal Academy’s petition for review to address whether the court of appeals properly dismissed the interlocutory appeal. Regardless of whether we have jurisdiction over the substance of an interlocutory appeal, we have jurisdiction to determine whether the court of appeals properly determined its own jurisdiction — the only issue raised in the petition and the briefing.
II. Discussion
A. Standard of Review
A statute’s meaning is a question of law we review de novo.
B. Statutory Provisions
Section 51.014(a)(8) permits an appeal of an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.”
(D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.12
Universal Academy argues it qualifies under this catch-all language as an “institution, agency, or organ of government” deriving its status and authority from statutory enactments.
Our cases “strictly construe Section 51.014(a) as a narrow exception to the general rule that only final judgments are appealable.”
We have received two amici curiae briefs, both supporting Universal Academy, one from the State of Texas (whose views the Court requested) and one from the Texas Charter Schools Association. Both amici echo Universal Academy’s contention that it falls within Section 101.001(3)(D), and we agree: An open-enrollment charter school qualifies as a “governmental unit” under the Tort Claims Act.
C. The “Status and Authority” of Open-Enrollment Charter Schools Arise From Statute.
Open-enrollment charter schools, governed by Chapter 12 of the Education Code, are indisputably part of the Texas public-education system. Several statutes in the Education Code and elsewhere amply demonstrate that open-enrollment charter schools derive their governmental “status and authority” from legislative enactments. Capped at 215 statewide,
Chapter 12 of the Education Code, which authorizes the operation of charter schools, seeks to “ensure! ] the fiscal and academic accountability” of charter holders
As for status, Section 12.105 of the Education Code — titled “Status” — statutorily (and categorically) declares open-enrollment charter schools to be “part of the public school system of this state.”
As for authority, that too derives from “laws passed by the legislature under the constitution.”
Put simply, open-enrollment charter schools wield many of the same powers as traditional public schools. They have stat
Chapter 12 further subjects open-enrollment charter schools to a host of statutes that govern governmental entities outside the Education Code. For example, for purposes of the Government Code’s regulation of open meetings and access to public information, “the governing body of an open-enrollment charter school [is] considered to be [a] governmental bod[y].”
In sum, numerous provisions of Texas law confer “status” upon and grant “authority” to open-enrollment charter schools. Their status as “part of the public school system of this state”
C2 suggests that Universal Academy is not a “governmental unit” because it is a private institution and can engage in for-profit activities. This is unpersuasive. It is true that open-enrollment charter schools can be operated by private institutions or private entities.
Universal Academy’s use of state-funded property and state funds is also carefully circumscribed. Property purchased or leased with state public funds — the source of more than 98% of Universal Academy’s funding — is held in trust for the benefit of the students
The dissent, however, maintains that Universal Academy lacks “governmental unit” status because, while the overall charter-school regime is set forth by statute, it is the State Board of Education (SBOE) that issues charters and the Commissioner of Education who revokes or denies renewal.
True enough, a charter school cannot operate without a charter. And charters are granted by the SBOE, not by 181 legislators sifting through mounds of applications.
III. Conclusion
Open-enrollment charter schools are governmental units for Tort Claims Act purposes because: (1) The Act defines “governmental unit” broadly to include “any other institution, agency, or organ of government” derived from state law;
Accordingly, because Universal Academy is a “governmental unit” under the Tort Claims Act, the court of appeals had jurisdiction to hear Universal Academy’s interlocutory appeal under Section 51.014(a)(8).
. See Tex. Civ. Prac. & Rem.Code § 101.001(3)(D).
. Id. § 51.014(a)(8) (permitting an appeal from an interlocutory order of a district court order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001”).
. See id. § 101.001(3)(D).
. Id. at 38.
. See Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010).
. See First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008).
. See City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009).
. See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006).
. See Presidio Ind. Sch. Dist. v. Scott, 309 S.W.3d 927, 929-30 (Tex. 2010).
. Tex. Civ. Prac. & Rem.Code § 51.014(a)(8).
. Id. § 101.001(3)(D).
. Universal Academy also argues it qualifies for "governmental unit” status as a "political subdivision” under Section 101.001(3)(B), specifically as a "school district.” See id. § 101.001(3)(B). We need not discuss Subsection (3)(B) since we hold that open-enrollment charters fall under Subsection (3)(D).
. See, e.g., Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007) (quotations and citation omitted).
. Tex. Civ. Prac. & Rem.Code § 101.001(3)(D).
. Tex. Educ.Code § 12.101.
. Id. § 12.002 (stating that the three classes of charter schools are: "(1) a home-rule school district charter ...; (2) a campus or campus program charter ...; or (3) an open-enrollment charter ....”); see id. § 12.011 (describing the "[a]uthorization" for and "[s]tatus” of home-rule school district charter schools); see id. § 12.052 (describing the "[ajuthorization" for campus or campus program charter schools); see id. § 12.101 (describing the "[ajuthorization" for open-enrollment charter schools); see id. § 12.105 (describing the "[sjtatus” of open-enrollment charter schools).
. Id. § 12.101.
. Id. § 12.001(b).
. Id. § 12.106(a) (A charter holder is entitled to receive funding for the open-enrollment charter school that is based in part on student "weighted daily attendance” and on "the state average tax effort.”); id. § 12.106(b) ("An open-enrollment charter school is entitled to funds that are available to school districts from the agency or the commissioner in the form of grants or other discretionary funding unless the statute authorizing the funding explicitly provides that open-enrollment charter schools are not entitled to the funding."); see id. § 12.106(c) ("The commissioner may adopt rules to provide and account for state funding of open-enrollment charter schools under this section.”).
. See id. § 12.001(a).
. Id.
. Id. § 12.105.
. Id. § 11.002.
. See id. § 12.1053.
. Tex. Civ. Prac. & Rem.Code § 101.001(3)(D).
. Tex. Educ.Code § 12.104(a).
. Id. § 12.102.
. Id. § 12.102(4) (An open-enrollment charter school "does not have authority to impose taxes.").
. Id. § 12.108(a) ("An open-enrollment charter school may not charge tuition to an eligible student who applies under Section 12.117.").
. Id. § 12.106(a) ("A charter holder is entitled to receive for the open-enrollment charter school funding under Chapter 42_”).
. Id. § 12.104(c) ("An open-enrollment charter school is entitled to the same level of services provided to school districts by regional education service centers.”).
. Id. § 12.103(a).
. Id. § 12.103(b).
. Id. § 12.104.
. Id. § 12.1051.
. Id. § 12.1052.
. See id. § 12.1053.
. Id. § 12.105.
. Id. § 12.104(a).
. See id. §§ 12.106, .107.
. See id. § 12.1053.
. See Tex. Civ. Prac. & Rem.Code § 101.001(3)(D).
. We leave undecided the separate issue of whether Universal Academy is immune from suit. The Solicitor General of Texas — responding to our request for briefing from the
. See Tex. Educ.Code § 12.101(a). Open-enrollment charter schools may be operated by any one of four eligible entities: a public institution of higher education, a governmental entity, a private or independent institution of higher education, or, in this case, a nonprofit organization. Id.
. See id. § 12.101(a)(3).
. Further, more than 93% of Universal Academy’s funding comes from the State of Texas, through per-pupil allotments similar to allotments paid to public independent school districts. See id. § 12.106. Universal Academy also receives federal funding and private donations, so the revenue from the sublease generates only a minuscule portion of Universal Academy’s revenues.
. Id. § 12.101(b); see abo id. § 12.113(a)(1).
. Id. § 12.1163(a)(1). The Commissioner also has the power to audit the records of the charter holder and any management company that provides management services to the school. See id. §§ 12.1163(a)(1) — (2), .1012.
. Id. § 12.115. Whether Universal Academy complied with statutory accountability and financial standards is not before us today.
. Id. § 12.102(1).
. Id. § 12.128(a)(2).
. Id. § 12.128(a)(3).
. See id.; see also id. § 45.033. Under Chapter 45, which covers school district funding, the governing board of a school district "may set and collect rentals, rates, and charges from students and others for the occupancy or use of any of the facilities, in the amounts and manner determined by the board....”
. Id. § 12.107(a)(3).
. Id. § 12.107(a)(2).
. Id. at 87.
. Id. at 87.
. Id. at 88. The dissent sees two narrow paths to "governmental unit” status for privately run open-enrollment charter schools: (1) under Subsection (3)(B), if such schools are added as a general category of "political subdivision” like junior college districts, or (2) under Subsection (3)(D), if each school has its existence statutorily declared, like each of our State's various public universities. Id. As explained above, this constrained view lacks any textual support, and we decline to graft this ancillary requirement onto the Legislature’s straightforward definition of "governmental unit” in Subsection (3)(D).
. Tex. Educ.Code § 12.101 (providing that the SBOE "may grant a charter for an open-enrollment charter school only to an applicant that meets any financial, governing, and operational standards adopted by the commissioner”).
. Id. § 12.113.
. Id. § 12.101(a).
. See id. § 12.102 (titled "Authority Under Charter”). The Education Code is the authority for these charter agreements; it defines the scope of their content and limits their effect on future renewals. Section 12.111, titled "Content,” says that "each charter granted under this subchapter must” include, among other things, the period of the charter’s validity, the conditional nature of its renewal, the minimum level of student performance, and the basis for revoking a charter. Id. § 12.111. Furthermore, ”[t]he grant of a charter under [Subchapter D] does not create an entitlement to a renewal of a charter on the same terms as it was originally issued.” Id. § 12.113(b).
. Id. § 12.104(a) (Open-enrollment charter schools have "the powers granted to [traditional public] schools” under Title 2 of the Education Code.).
. Id. § 12.102(3).
. See id. § 12.102(4) (An open-enrollment charter school "does not have authority to impose taxes.”); see also id. § 12.108(a) ("An open-enrollment charter school may not charge tuition to an eligible student who applies under Section 12.117.”).
. Id. § 12.105 (titled "Status”).
. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 730 n. 8 (Tex. 1995) ("As long as the Legislature establishes a suitable regime that provides for a general diffusion of knowledge, the Legislature may decide whether the regime should be administered by a state agency, by the districts themselves, or by any other means.”).
. See Tex. Civ. Prac. & Rem.Code § 101.001(3)(D).
. Tex. Educ.Code § 12.105.
. Id. § 11.002.
. Id. § 12.103(a).
. Id.§ 11.002.
. Id. § 12.1053; see also id. §§ 12.1051-.1052.
. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8).
Dissenting Opinion
joined by Chief Justice JEFFERSON and Justice MEDINA, dissenting.
A party’s ability to take an interlocutory appeal is a limited exception to the general rule that only final orders are appealable. As applicable here, the contours of that exception are found in sections 51.014(a)(8) and 101.001(3) of the Civil Practice and Remedies Code. Despite these limits, the Court embarks on a perilous expedition through the Education Code in an attempt to locate some indicia that the Legislature intended to allow privately run, open-enrollment charter schools to take this circumscribed form of appeal. In so doing, the Court ventures beyond the narrow procedural question presented in this case: whether a privately run, open-enrollment charter school is a “governmental unit” as defined by section 101.001(3) of the Civil Practice and Remedies Code. If it is, then an interlocutory appeal is proper from de
Moreover, not only does the Court allow for an interlocutory appeal that is contrary to the expressed intent of the Legislature, the Court has also effectively answered an important substantive question that is not before us: what type of immunity does a privately run, open-enrollment charter school possess? Specifically, do such schools: (1) possess governmental immunity from suit, (2) merely have immunity from liability, or (8) lack immunity entirely? The Court’s reasoning, while masquerading as an answer to the narrow procedural issue before us, portends to address the merits of this immunity question. By doing so, the Court provides courts below with a signal that such schools possess immunity from suit. As a result, a private, nonprofit corporation can take on the mantle of governmental immunity, leaving other litigants wrongfully deprived of their day in court and without an opportunity to have this issue addressed through the rigors of our adversarial system. Accordingly, I must respectfully dissent.
I. Interlocutory Appeal Under Section 51.014(a)(8)
LTTS Charter School, Inc. (LTTS), is a private, nonprofit corporation, operating an open-enrollment charter school. LTTS does so under authority of a charter issued by the State Board of Education, pursuant to the charter school regime established by Chapter 12 of the Education Code. It is being sued by C2 Construction for breach of contract relating to the construction of new facilities. LTTS filed a plea to the jurisdiction, asserting governmental immunity. The trial court denied that plea, and when LTTS attempted an interlocutory appeal, the court of appeals dismissed its appeal for lack of jurisdiction, holding that LTTS is not a governmental unit under section 101.001(3). 288 S.W.3d 31, 38.
Civil Practice and Remedies Code section 51.014(a)(8) allows immediate appeal of an order denying or granting a plea to the jurisdiction by a governmental unit and, in doing so, incorporates by reference section 101.001(3)’s definition of what constitutes a governmental unit. Tex. Civ. Prac. & Rem.Code § 51.014(a)(8). In construing section 51.014, it is “the Legislature’s intent that section 51.014 be strictly construed as a narrow exception to the general rule that only final judgments and orders are appealable.” Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001) (quotation marks omitted). LTTS asserts that it is a “governmental unit” for purposes of section 51.014(a)(8) under two provisions found in section 101.001(3). Specifically, LTTS argues that it is a governmental unit both as a “school district” under section 101.001(3)(B), and also as “any other institution, agency, or organ of government” as provided by section 101.00K3XD).
A. “Any Other Institution, Agency, or Organ of Government” Under Section 101.001(3)(D) and “School District” Under Section 101.001(3)(B)
The Court holds that LTTS is a governmental unit under section 101.001(3)(D), concluding it qualifies as “any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.” Tex. Civ. Prag & Rem.Code § 101.001(3)(D). The first part of that definition, “any other institution, agency, or organ of government,” appears quite broad. But that apparent breadth is circumscribed by the language that follows: “status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.” The linchpin of section 101.001(3)(D) is the word “derive.” “Derive” means “to receive or obtain from a source or origin.” Random House Dictionary of the English Language 536 (2d ed. 1987). The plain language of section 101.001(3)(D) thus covers only two classes of governmental entities: those whose status and authority comes directly from our Constitution, and those whose status and authority is received or obtained by a legislative enactment. See Tex. Civ. Prag & Rem.Code § 101.001(3)(D).
Unquestionably, LTTS does not derive its status from the Constitution. We therefore examine whether it falls within the other class of entities covered by section 101.001(3)(D) — those whose status and authority is conferred by a legislative enactment. LTTS does not fall within that class either, because it does not obtain or receive status or authority from any statute or other enactment. Rather, its status is derived from a charter granted by the State Board of Education. See Tex. Edug Code §§ 12.101, .113. If LTTS’s charter is revoked, or if the commissioner of education denies its renewal, see id. §§ 12.115, .116, LTTS will cease to have any kind of governmental status and will simply be a private, nonprofit corporation. See id. § 12.1161(a) (“[I]f the commissioner revokes or denies the renewal of a charter of an open-enrollment charter school ... the school may not: (1) continue to operate under this subchapter; or (2) receive state funds under this subchapter.”). In point of fact, although the Education Code authorizes the State Board of Education to grant charters, it does not itself grant them to any particular entities. Therefore, LTTS does not derive its status or authority from any legislative enactment.
LTTS also asserts that it is a governmental unit under section 101.001(3)(B) as a “political subdivision, specifically, a school district.” The Court does not reach that question. I would hold that the plain meaning of “school district” does not cover a privately operated, open-enrollment charter school. A school district is a “political subdivision,” Tex. Civ. Prac. & Rem. Code § 101.001(3)(B), exercising “jurisdiction over a portion of the State,” Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex. 1980). Rather than exercising jurisdiction, an open-enrollment charter school “provide[s] instruction to students at one or more” locations, and “does not have authority to impose taxes.” Tex. Educ.Code § 12.102(1), (4). Furthermore, the Legislature, far from defining charter schools as school districts, generally goes
Rather than employing this strict textual analysis to determine whether the requirements of section 101.001(B) are met, the Court largely ignores the statutory text and instead meanders through a wide-ranging consideration of Chapter 12 of the Education Code. Seeking to buttress its conclusion, the Court cites sections of the Education Code that generally describe how open-enrollment charter schools operate, but are irrelevant to the narrow procedural issue before us. The Court thus mistakenly focuses only on the inclusive, general part of the definition “institution, agency, or organ of government,” while disregarding the limiting language “status and authority of which are derived ... from laws passed by the legislature under the constitution.” Tex. Crv. PRac. & Rem. Code § 101.001(3)(D), thereby rendering meaningless the limiting language in that section and thwarting the Legislature’s intent. The Court is also oblivious to the rule that interlocutory appeals are disfavored, and that section 51.014 is to be strictly construed accordingly. See Bally Total Fitness, 53 S.W.3d at 355.
The Court makes a bold but brief effort to identify legislative enactments that confer status and authority on LTTS under section 101.001(3)(D). It particularly cites sections 12.104 and 12.105 of the Education Code, asserting that charter schools derive authority and status respectively from those enactments. But section 12.104 does not confer authority on LTTS, or on any other charter school. See Tex. Educ.Code § 12.104. It merely provides that charter schools have the same powers as public schools under Title 2 of the Education Code. See id. Whether a particular entity like LTTS is an open-enrollment charter school, and is thus able to avail itself of those powers, is entirely dependent on the grant of a charter from the State Board of Education. See id. §§ 12.101, .113. Section 12.105 likewise does not confer status on LTTS, or any other charter school, but instead provides that open-enrollment charter schools are part of the public school system. See id. § 12.105. As with section 12.104, whether any particular entity is an open-enrollment charter school— and hence part of the public school system — depends on the grant of a charter from the State Board of Education.
The Court also cites Education Code section 12.1053 as conferring governmental status on open-enrollment charter schools. But, in addition to the fact that it does not confer status for the reasons discussed above, an examination of section 12.1053 demonstrates a clear intent to only apply very specific definitions and provisions from the Government and Local Government Codes to charter schools. It defines open-enrollment charter schools as (1) “governmental entities]” under subchap-ter D, Government Code Chapter 2252 (providing that real property is held in trust); (2) “governmental entities]” under subchapter B, Local Government Code Chapter 271 (addressing competitive bidding on certain public works contracts); (3) “political subdivision[s]” under sub-chapter A, Government Code Chapter 2254 (governing professional services contracts); and (4) “local government” under Government Code sections 2256.009 to 2256.016 (regulating authorized investments). Tex. Educ.Code § 12.1053. None of those four definitions is the same as “ ‘governmental unit’ under Civil Practice and Remedies Code section 101.001(3),” which is, after all, the inquiry here.
Finally, the Court notes that “[s]everal statutes discuss the authority that open-enrollment charter schools may exercise
This is not to say that the Legislature could never allow a privately run, open-enrollment charter school like LTTS to take an interlocutory appeal. And, contrary to the Court’s understanding, I am not suggesting that only a legislative enactment specifically naming each charter school would suffice, or that the Legislature must approve each charter application. 342 S.W.3d 73. Rather, had the Legislature chosen to do so, it could readily have provided for interlocutory appeals by open-enrollment charter schools as a class. For example, it could have amended the interlocutory appeal statute. Cf. Tex. Civ. Prac. & Rem.Code § 51.014(a)(6) (authorizing interlocutory appeal from an order denying a motion for summary judgment “based in whole or in part upon a claim against or defense by a member of the electronic or print media”). But, the Legislature did not so choose. Cf. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 463 (Tex. 2009) (Willett, J., concurring) (citation omitted) (“[T]he ‘surest guide’ to what lawmakers intended is what lawmakers enacted.”). Nor is this to say that an interlocutory appeal would always be improper for a publicly run, open-enrollment charter school — such a school would likely be a governmental unit independent of its charter.
B. Comparison to Public Universities and Junior College Districts
The Legislature’s treatment of public universities and junior colleges under section 101.001(3) illustrates the actual manner in which the Legislature designates entities as governmental units under that section, and further highlights the flaw in the Court’s reasoning. Specifically, junior college districts are governmental units under section 101.001(3)(B) because they are listed in that subsection, whereas public universities are governmental units under section 101.001(3)(D) because their authority and status is conferred by legislative enactments.
Civil Practice and Remedies Code section 101.001(3)(B) includes “junior college district[s],” as well as school districts, in its enumeration of entities that are governmental units. Tex. Civ. PRAC. & Rem.Code § 101.001(3)(B). By contrast, public universities are treated differently from both junior colleges and charter schools. Although, like charter schools, they are not listed anywhere in section 101.001(3), public universities nevertheless satisfy the precise standards articulated by section 101.001(3)(D), which requires that an entity’s governmental status be “derived from ... laws passed by the legislature.” Id. § 101.001(3)(D) (emphasis added). The extensive provisions of Title III of the Education Code, entitled “Higher Education,” confer status and authority on the various public universities of this state. See, e.g., Tex. Educ.Code § 67.02 (“The University of Texas at Austin is a coeducational institution of higher education within The University of Texas System.”); id.
Unlike public universities, specific charter schools are not mentioned in the Education Code, nor any other statute, and they therefore do not derive status as governmental units from legislation, as section 101.001(3)(D) requires. Rather, like junior colleges, the Legislature has provided administrative procedures for their creation, but has not actually conferred status on them itself. See id. §§ 130.011-.013 (providing for establishment of junior college districts by joint action of the coordinating board, commissioner of higher education, and the independent school district or city that wishes to establish a junior college district); id. §§ 12.101, 113 (authorizing the State Board of Education to grant charters).
Accordingly, I would conclude that privately run, open-enrollment charter schools such as LTTS do not fall within the plain language of section 101.001(3)(D), because they gain and lose their status and authority through agency actions, not by legislative enactments. I would also conclude that they are not “school districts,” and therefore are not governmental units under section 101.001(3)(B). Thus, I would hold that LTTS is not entitled to an interlocutory appeal under section 51.014(a)(8).
III. The Court Effectively Answers a Substantive Question Not Before Us
The Court’s reasoning further effectively answers a question not before us today — that is, whether privately run, open-enrollment charter schools like LTTS possess governmental immunity from suit. Although the Court professes to reserve judgment on this issue, the reasoning of the Court’s opinion appears to be animated by a concern raised by the Solicitor General. See 342 S.W.3d 73 n. 44. The Solicitor General asserts that it would be “illogical” to hold that open-enrollment charter schools are not governmental units under section 101.001(3)(D), because if they are not, the waiver in the Tort Claims Act allegedly would not apply. In other words, charter schools would be governmental entities that enjoy immunity from suit in the first instance, but they would not be “governmental units” under section 101.001(3), for which certain immunity is waived by the Tort Claims Act. The Solicitor General further reasons that such a result would leave charter schools entirely immune from tort claims, whereas school districts’ immunity is waived by the Act.
The Court endorses this reasoning. 342 S.W.3d 73 n. 44. (“[AJssuming arguendo the Legislature can grant immunity from liability, it would seem odd for lawmakers to imbue open-enrollment charter schools
Second, as discussed above, the Court avoids the question of whether an open-enrollment charter school is a “school district” today, but we will inevitably face this issue in the future. If open-enrollment charter schools do possess immunity from suit, as the Court’s opinion suggests, it follows that the only way immunity would be waived for contract claims such as those brought here would be through the contract-claims waiver in Local Government Code section 271.152. And that waiver would most likely apply to privately run, open-enrollment charter schools only if such schools are “school districts,” which, as previously explained, they are not. This is because the definition of “local governmental entity” to which that waiver applies contains no catch-all provision equivalent to section 101.001(3)(D). See Tex. Loc. Gov’t Code § 271.151(3). Rather, it is limited to a list of entities nearly identical to those found in section 101.001(3)(B). Both definitions cover the following entities: (1) city or municipality, (2) school district or junior college district, and (3) “levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority.” Compare id. § 271.151(3)(A)-(C), with Tex. Civ. Prac. & Rem.Code § 101.001(3)(B). The only substantive difference between the two is that section 271.151(3) excludes counties, while section 101.001(3)(B) includes them. Compare Tex. Loc. Gov’t Code § 271.151(3), with Tex. Civ. Prac. & Rem.Code § 101.001(3)(B). Section 271.152’s waiver is therefore limited to the same governmental units that fall under section 101.001 (3)(B), with the exception of counties. And because open-enrollment charter schools are not included in section 271.152’s list of entities, they also would not fall within its waiver of immunity.
Third, given that an open-enrollment charter school’s very existence as a public school is dependent on an agency’s grant of a charter, and is subject to revocation at the whim of an agency, it is unclear what the effect of a charter revocation mid-suit
Finally, such reasoning simply begs the question of whether privately run, open-enrollment charter schools are immune at all. It is far from clear that the Legislature can confer immunity upon private entities like LTTS. Sovereign immunity (and by extension, governmental immunity, which is derived from it) is a common-law doctrine of the courts. See Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006). Generally, the Legislature’s role is limited to waiving immunity, while recognition of immunity’s existence is left to the courts. See id. at 331-32 (noting that the Court has long upheld the rule of sovereign immunity, while deferring to the Legislature to waive it). Indeed, after a review of the doctrine’s foundations, we concluded that “it remains the judiciary’s responsibility to define the boundaries of the ... doctrine and to determine under what circumstances sovereign immunity exists in the first instance.” Reata Constr. Co. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006) (emphasis added); see also City of Galveston v. State, 217 S.W.3d 466, 475 (Tex. 2007) (Willett, J., dissenting) (“The Legislature’s focus is critical but confined; its role is limited to waiving pre-existing common-law immunity.”). We further noted that “[sjovereign immunity is a common-law doctrine that initially developed without any legislative or constitutional enactment.” Reata, 197 S.W.3d at 374. In part for policy reasons, we defer to the Legislature to waive such immunity as has been recognized by the courts. See id. at 375 (“We have generally deferred to the Legislature to waive immunity because the Legislature is better suited to address the conflicting policy issues.... ”). Our sovereign immunity jurisprudence therefore suggests, at least as a general matter, that courts create or recognize sovereign immunity, while the Legislature waives it.
It is true that there are some forms of statutory immunity. See, e.g., Franka v. Velasquez, 332 S.W.3d 367, 371 n. 9 (Tex. 2011) (holding that section 101.106 of the Civil Practice and Remedies Code confers immunity in some instances to employees of governmental units); Entergy Gulf States, 282 S.W.3d at 436 (noting that general contractors have limited immunity as “statutory employers” under Texas Labor Code section 408.001(a)). But the precise contours of the Legislature’s power to grant immunity by statute remain unclear — it is no doubt limited by the Open Courts and Due Course of Law provisions of our Constitution. It may be constitutionally significant that both of the above examples involve special circumstances that limit the breadth of the immunity in question. In the first, the government is
In sum, it is unsettled whether the Legislature has the power to confer immunity from suit on privately operated, open-enrollment charter schools via the statutory scheme in question. But, leaving aside that thorny issue, the only legislative act that addresses immunity for open-enrollment charter schools narrowly provides that they are “immune from liability to the same extent as a school district.” Tex. Educ.Code § 12.1056 (emphasis added). Immunity from liability is not the same as immunity from suit. Tooke, 197 S.W.3d at 332. The former “bars enforcement of a judgment against a governmental entity,” id., while only the latter is the basis for a plea to the jurisdiction, see id.; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). The plain meaning of section 12.1056 therefore gives no indication that LTTS is immune from suit, independent of whether it is immune from liability, and as such provides no basis for a plea to the jurisdiction. In other words, regardless of whether the Legislature has the power to confer immunity from suit in this case, section 12.1056 does not suffice to do so, making it anything but a foregone conclusion that privately operated, open-enrollment charter schools have immunity from suit.
Despite these unsettled questions, the Court’s reasoning will strongly imply to our state’s lower courts that we have already determined that privately run, open-enrollment charter schools are immune from suit. Indeed, nearly all of the Court’s analysis would be more properly addressed to the merits of LTTS’s assertion of immunity, rather than the narrow procedural question that is actually before us. I fear that the Court’s approach will effectively deprive litigants of their day in court to properly contest whether privately run, open-enrollment charter schools in fact have immunity from suit. We should not predetermine this important decision now, but should wait until it is squarely presented to this Court, and we should decide it explicitly, not by implication.
IY. Conclusion
Because (1) the plain meaning of Civil Practice and Remedies Code section 101.001(3) does not cover a privately run, open-enrollment charter school like LTTS, and (2) the Court has effectively resolved the underlying substance of whether such schools enjoy immunity from suit, rather than the procedural issue properly before us, I respectfully dissent, and would affirm the court of appeals’ holding that it lacked jurisdiction over this interlocutory appeal.
. As relevant here, section 101.001(3) defines a "governmental unit” as:
(B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;
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*84 (D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.
Tex. Civ. Prac. & Rem.Code § 101.001(3)(B), (D).
. Chapter 12 of the Education Code provides that charters can be granted not only to private entities, but also to public institutions of higher learning, and other governmental entities. Tex. Educ.Code § 12.101(a)(1), (4).
. Junior college districts are by no means unique in this respect. Similarly, for example, water improvement districts derive their authority from local governments, not the Legislature, and, like junior colleges — but unlike charter schools — they are listed in section 101.001(3). See Tex Water Code §§ 55.021-.053 (establishing rules and procedures by which local governments may create water improvement districts); Tex. Civ. Prac. & Rem. Code § 101.001(3)(B) (defining governmental unit as “a political subdivision of this state, including any ... water improvement district").
. School districts as a practical matter are almost entirely immune — the Tort Claims Act excludes them from its waiver "[e]xcept as to motor vehicles.” Tex. Civ. Prac. & Rem.Code § 101.051; see also Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex. 1987) (holding school district immune from suit for injuries suffered by a student aboard a school bus, because the injuries did not result from the "operation” or "use” of the bus).
. Notably, although Education Code section 12.1053 makes subchapter B (covering competitive bidding on certain public works contracts) of Local Government Code Chapter 271 applicable to open-enrollment charter schools, it does not apply subchapter I (which includes the waiver provisions found in sections 271.151 and 271.152) to them. See Tex. Educ.Code§ 12.1053.
. Significantly, we have also reserved the possibility that, having created sovereign immunity, the judiciary "may modify or abrogate such immunity by modifying the common law," Reata, 197 S.W.3d at 375, though we have cautioned that courts should not lightly set aside immunity, once recognized, as doing so "could become a ruse for avoiding the Legislature,” City of Galveston, 217 S.W.3d at 471.
Reference
- Full Case Name
- LTTS CHARTER SCHOOL, INC. D/B/A Universal Academy, Petitioner, v. C2 CONSTRUCTION, INC., Respondent
- Cited By
- 93 cases
- Status
- Published