Is a city's claim for attorney's fees under the UDJA a counterclaim that waives the governmental
entity's immunity to suit? The Court here skirts the issue and remands to the trial court for
reconsideraton of the judgment on other grounds.

City of Dallas v. DeQuire, No. 06-0543 (Tex. Mar. 28, 2008)(per curiam)
(governmental immunity, counterclaim for attorney's fees, statutory waiver of immunity to breach of contract

Dallas County; 5th district (05-04-01865-CV, 192 S.W.3d 663, 04-18-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion

Terms: local government immunity, immunity waiver, Tooke progeny, Reata progeny, UDJA, breach of contract
Links: Other Texas Supreme Court Decions | Per Curiam Opinions from the Texas Supreme Court


City of Dallas v. DeQuire (Tex. 2008)(per curiam)



Dallas police officers Dwight DeQuire, Michael Felini, Terrance Hopkins and Leroy Quigg sued the City of
Dallas for breach of contract, citing the City Charter and alleging the City’s failure to promote them was in
violation of the City’ civil service rules and written Police Department policy. Plaintiffs sought declaratory relief
and damages.

The City filed a plea to the jurisdiction based on governmental immunity, and requested recovery of all costs of
suit and attorney fees. The trial court granted the City’s plea to the jurisdiction. The court of appeals reversed
the trial court’s order, holding that the City’s request for attorney fees was an affirmative counterclaim waiving
immunity from suit. 192 S.W.3d 663, 666 (Tex. App.—Dallas 2006).

The court of appeals relied on our first opinion in
Reata Constr. Corp. v. City of Dallas, which we have since
withdrawn and replaced. See
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). We need
not reach whether a request for attorney fees under the Declaratory Judgments Act waives immunity from suit
for claims for money damages not otherwise allowed under that Act. See Tex. Educ. Agency v. Leeper, 893 S.
W.2d 432, 446 (Tex. 1994) (holding, in an action construing the compulsory school-attendance law, that the
Declaratory Judgments Act, by authorizing actions to construe legislative enactments and attorney fee awards,
"necessarily waives governmental immunity for such awards").

On remand, the plaintiffs should have the opportunity to argue any grounds for waiver remaining under this
Court’s decisions, including whether the City’s immunity from suit is waived by sections 271.151-.160 of the
Local Government Code, enacted while this case has been pending on appeal. See Dallas Fire Fighters Ass’n
v. City of Dallas, 231 S.W.3d 388, 388-89 (Tex. 2007) (per curiam); City of Irving v. Inform Constr., Inc., 201 S.
W.3d 693, 694 (Tex. 2006) (per curiam);
Tooke v. City of Mexia, 197 S.W.3d 325, 343(Tex. 2006) (citing
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 n. 1 (Tex. 1997)); Reata, 197 S.W.3d at 378. Accordingly, we
grant the City's petition for review and without hearing oral argument, reverse the judgment of the court of
appeals and remand the case to the trial court for further proceedings. Tex. R. App. P. 59.1.

Opinion delivered: March 28, 2008