City of Mexia v. Tooke

In City of Mexia v. Tooke, 115 S.W.3d 618 (Tex. App.-Waco 2003, pet. granted), the City of Mexia contracted for curbside collection of brush and leaves in the city. Tooke, 115 S.W.3d at 620. After the city notified the contractor that its services were not required due to budget limitations, the contractor sued the city for breach of contract. The trial court denied the city's plea to the jurisdiction, and the city was found liable for damages and attorney's fees. The city appealed, arguing that section 51.075 does not constitute a waiver of immunity from suit for home rule municipalities. Thus, the Tooke court was called upon to determine whether "plead and be impleaded" waived a home rule municipality's immunity from suit. Id. at 622. The Waco Court of Appeals in Tooke did not address whether any part of the city charter can waive immunity from suit since there was no evidence regarding the city charter in the record. The Court observed that the Texas Supreme Court has never held this particular language sufficient to constitute a "'clear and unambiguous' waiver of immunity from suit." Tooke, 115 S.W.3d at 622 (quoting TEX. GOV'T CODE ANN. 311.034). Additionally, the Waco Court observed that the Texas Supreme Court has not held that "plead and be impleaded" is equivalent to "sue and be sued." See id.