                          REVISED JANUARY 16, 2003

               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                No. 01-11398



     ANN TENISON HEREFORD WEBB; LIZANN TENISON WEBB; BYRON JAMES
     WEBB; CAMILLE ELIZABETH WEBB SEWELL

                                   Plaintiffs - Appellees

     v.

     CITY OF DALLAS, TEXAS; CITY OF DALLAS PARKS AND RECREATION
     DEPARTMENT; CITY OF DALLAS PARKS & RECREATION BOARD; PAUL
     DYER, Director, City of Dallas Parks & Recreation Department

                                   Defendants - Appellants


           Appeal from the United States District Court
                for the Northern District of Texas

                        December 16, 2002
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit

Judges.

KING, Chief Judge:

     This interlocutory appeal requires us to decide whether, as

the district court held, Defendants are immune from suit based on

Texas’s   doctrine   of    sovereign   immunity.     Resolution   of   this

question requires us to first decide whether the Plaintiffs have

constitutional standing to sue.        Because we agree that Plaintiffs

have asserted a claim in this controversy sufficient to satisfy

Article III’s minimum constitutional standing requirements and that
                               No. 01-11398
                                    -2-

state sovereign immunity from suit does not bar Plaintiffs’ claims

against Defendants, we affirm the order of the district court to

the extent that it denied Defendants’ sovereign immunity from suit.

                I.    FACTS AND PROCEDURAL BACKGROUND

     A.     The Parties Involved and Legal Instruments at Issue

     This case involves a dispute regarding deed restrictions on

property donated to the City of Dallas.         Edward O. and Annie M.

Tenison (“the Tenisons”) had four children. Their son, Edward Hugh

Tenison, predeceased his parents. Edward Hugh Tenison was survived

by two children, Elizabeth Ann Tenison and Edward Hugh Tenison, Jr.

Elizabeth Ann Tenison was the grandmother of Plaintiff-Appellee Ann

Tenison Hereford Webb and the great-grandmother of Plaintiffs-

Appellees   Lizann   Tenison   Webb,   Byron   James   Webb   and   Camille

Elizabeth Webb Sewell (together, the “Webbs”).          Hence, the Webbs

are the great-grandchildren and great-great-grandchildren of the

Tenisons.

     On December 12, 1922, Edward O. Tenison executed his will, in

which he bequeathed $25,000 to each of his three living children:

Mrs. Cruger T. Smith, Mrs. Dan M. Craddock and Mr. James C.

Tenison.    The will also created separate trusts in the amount of

$25,000 for each of his three grandchildren, including Elizabeth

Ann Tenison.     Edward O. Tenison left the “rest, residue, and

remainder” of his estate to his wife, Annie M. Tenison.             At the

time he executed the will, the Tenisons owned the land that is the
                           No. 01-11398
                                -3-

subject of the current dispute.

     On March 23, 1923, the Tenisons deeded 78.8 acres of real

estate located between East Grand Avenue and East Pike Road to the

City of Dallas in memory of their son, Edward Hugh Tenison.      The

deed included the following restriction,

     But this conveyance is made for the purposes of a public
     park only, and upon the express condition that the
     property shall always be used by the City of Dallas, for
     the purposes of a public park for the use and enjoyment
     of the people of the City of Dallas, and for such
     purposes exclusively.    Said park shall be known and
     designated for all time as “Tenison Park.” And if said
     property, or any part thereof, shall not be used for the
     purposes of a Public Park, or if said property, or any
     part thereof, shall be used for any purpose other than
     public park purposes as above provided for, or should the
     name of said park be changed from the above designated,
     then and in each such event the right and title of the
     City of Dallas to the property hereby granted shall
     cease, and said property and all right and title thereto
     shall at once revert to and vest in us or our heirs, and
     it shall be lawful for us or our heirs to re-enter upon,
     take, repossess and enjoy all and singular the property
     hereby granted as in our former estate.

On March 29, 1923, the Tenisons donated a second tract of land to

the City of Dallas under the same terms and conditions as the first

conveyance.

     Edward O. Tenison died in 1924.   On October 5, 1925, Annie M.

Tenison executed a will, providing that,

     [The] rest, residue and remainder of the property of
     which I may die seized or possessed, or to which I may be
     entitled at the time of my death, whether real, personal
     or mixed, and wheresoever situated, I give, devise and
     bequeath to my beloved children, Mrs. Cruger T. Smith,
     Mrs. Dan M. Craddock, and James Charles Tenison.

Annie M. Tenison died in 1927.
                                 No. 01-11398
                                      -4-

       B.   The Current Dispute

       As the grantee under the deeds, the City of Dallas operated

two municipal golf courses on the property known as Tenison Park.

In 1998, the Dallas City Council approved a plan to redesign the

Tenison Park West Course, and the renovated golf course was opened

for business in October 2000.        The Webbs allege that rising green

fees    effectively   excluded    certain   citizens    from   the   use   and

enjoyment of the property and that the name of the property was

also changed from “Tenison Park” to “Tenison Highlands.”

       On November 22, 2000, the Webbs filed suit in federal court

against the City of Dallas, its Parks and Recreation Department and

Parks and Recreation Board and Park Director Paul Dyer, in his

official capacity (together the “City”).          In general, the Webbs

claimed that the City “t[ook] said property and ha[ve] not used and

expressed intention not to use the property for purposes of a

public park.” More specifically, in their First Amended Complaint,

the Webbs sought a reverter of the property to them as heirs of the

Tenisons, a declaration that they have the right to immediately

reenter upon and take possession of the property, damages for

breach of the Dallas City Charter and Texas trust law and an

accounting of all profits realized by the City’s activities from

November 1999 through the date of final judgment in this case.             The

Webbs    further   generally     claimed,   without    particularizing     the

specific relief sought, relief under a state trespass to try title
                                   No. 01-11398
                                        -5-

cause of action.

      The Webbs moved for partial summary judgment on their claims

for   declaratory    relief,       trespass   to   try   title   and   right    of

reverter.    The City moved for summary judgment on the basis that

the Webbs are not legally entitled to enforce restrictions in the

deeds and moved for judgment on the pleadings on the basis that the

doctrine of sovereign immunity precludes the Webbs from bringing

suit against the City.

      C.    The District Court Decision

      On   October   4,    2001,    the   United    States    Magistrate   Judge

recommended that the district court deny all pending motions in

this case.    By order dated October 17, 2001, the district court

adopted the “Findings and Recommendation of the United States

Magistrate   Judge,”      effectively     denying    the     City’s   motion   for

summary judgment and for judgment on the pleadings.

      The City appeals the district court’s order denying its

motion.

                          II.      STANDARD OF REVIEW

      This court reviews de novo the denial of a summary judgment

motion based on standing.1           This court also reviews de novo the

denial of a motion for judgment on the pleadings based on state




      1
          Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d
350, 356 (5th Cir. 1999).
                            No. 01-11398
                                 -6-

sovereign immunity.2   In adjudicating a motion for judgment on the

pleadings, the court may look only to the pleadings and must accept

all facts pleaded therein as true.3

    III.    ARTICLE III STANDING AND STATE SOVEREIGN IMMUNITY

     The issues before the court on appeal are (1) whether the

Webbs claim an interest in the property sufficient to satisfy the

jurisdictional   injury-in-fact   requirement   of   Article   III,   and

(2) whether, even if Article III standing is found, the City is

nevertheless immune from suit under the doctrine of sovereign

immunity.   Regarding the City’s argument that the Webbs lack a

legal interest to sue as “heirs” under the deeds, the district

court specifically determined that genuine issues of material fact

exist as to whether the Webbs are legal “heirs” of the Tenisons, as

that term is used in the relevant deeds.        Regarding the City’s

argument that Texas’s sovereign immunity doctrine immunizes it from

the present suit, the district court concluded that the City waived

immunity from both suit and liability.          On appeal, the City

contends that the Webbs have not satisfied the injury-in-fact

requirement for this court to have Article III jurisdiction and

that it has not waived immunity from suit such that subject matter

jurisdiction to entertain the merits of the Webbs’ claims is

     2
          PYCA Indus., Inc. v. Harrison County Waste Water Mgmt.
Dist., 81 F.3d 1412, 1417-20 (5th Cir. 1996).
     3
          St. Paul Fire & Marine Ins. Co. v. Convalescent Serv.,
Inc., 193 F.3d 340, 342 (5th Cir. 1999).
                                No. 01-11398
                                     -7-

present.

     A.     Standing under Article III

     Initially, we must conclude that we have jurisdiction under

Article III of the United States Constitution before proceeding to

the merits of the City’s claim of sovereign immunity from suit.4

In response to the City’s motion for summary judgment that the

Webbs do not possess a right to enforce the deed restrictions as

“heirs” when the residuary clause in Annie M. Tenison’s will left

the “rest, residue and remainder” of her property to her three

children, the district court found that “genuine issues of material

fact as to whether plaintiffs are the ‘heirs’ of Edward O. and

Annie M. Tenison, as that term is used in the Tenison deeds,”

precluded summary judgment.          On appeal, we are not called upon to

review    the   merits   of   the    district   court’s   summary     judgment

determination     regarding    the    Webbs’    alleged   ownership    rights.

Rather, in order to review the discrete sovereign immunity question

on appeal, we must only determine that the minimum constitutional

requirements for standing are satisfied.5

  The Webbs are not direct descendants of the named beneficiaries

     4
          See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 93-94 (1998); Calderon v. Ashmus, 523 U.S. 740, 745 & n.2
(1998); House the Homeless, Inc. v. Widnall, 94 F.3d 176, 179 n.7
(5th Cir. 1996).
     5
          Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)
(discussing the Cohen doctrine and the limited jurisdiction of an
appellate court to review “an important issue completely separate
from the merits of the action.”).
                                  No. 01-11398
                                       -8-

of the residuary clause of Annie M. Tenison’s will.                         Moreover,

neither of the Tenison wills specifically references the future

interest created by the Tenison Park conveyances to the City.

Nevertheless, in their First Amended Complaint, the Webbs have

undoubtedly     asserted     an   interest        in     this   property     dispute

sufficient to satisfy the injury-in-fact jurisdictional requirement

of the Article III standing doctrine.

     Standing    to    sue   is   the    “core    of     Article    III’s   case-or-

controversy      requirement,      and     the         party    invoking      federal

jurisdiction bears the burden of establishing its existence.”6                    To

invoke federal jurisdiction, the Webbs are required to allege facts

demonstrating that they have suffered an injury-in-fact — an

invasion of a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical.7        This   requirement     is    part    of   the   “irreducible

constitutional     minimum”       required       to     establish     Article    III

standing.8

     Here, the Webbs have asserted a “personal stake” in the

dispute that is concrete and particularized.9                      As alleged, the


     6
             Id. at 103-04.
     7
          Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992); Gore, Inc. v. Espy, 87 F.3d 767, 771 (5th Cir. 1996).
     8
          Riley v. St. Luke’s Episcopal Hosp., 196 F.3d 514, 532
(5th Cir. 1999).
     9
             Raines v. Byrd, 521 U.S. 811, 818 (1997).
                           No. 01-11398
                                -9-

conduct of the City in violating the deed restrictions has affected

the Webbs in a personal, individual and particularized way because

as “heirs” under the deeds, they have a personal stake in seeing

that the City adheres to the restrictions on the use of the Tenison

property.10

     The Webbs may ultimately fail to prove ownership or any

property interest entitlement to the Tenison property.   Facially,

however, the First Amended Complaint (including its reference to

the express language of the relevant deeds) avers that the Webbs

suffered a concrete constitutional injury-in-fact by the City’s

failure to operate the Tenison property in accordance with the deed

restrictions and that through the express conveyance of a fee

simple subject to a condition subsequent, the Webbs can now redress

this injury by exercising their right of reentry as “heirs.”11

These allegations assert an interest in the property dispute

sufficient to meet the minimum constitutional requirements of

Article III.

     B.   Sovereign Immunity

     Having dispensed with the question whether the Webbs have

constitutional standing to pursue their claims, we now turn to the

     10
          Id.
     11
          See Lawyers Trust Co. v. City of Houston, 359 S.W.2d
887, 890 (Tex. 1962) (discussing the characterization of a fee
simple determinable and a fee simple subject to a condition
subsequent); Gutierrez v. Rodriguez, 30 S.W.3d 558, 560 (Tex.
App.– Texarkana 2000, no pet.).
                                No. 01-11398
                                    -10-

question whether the City has waived immunity from suit.

       In answering a question where, as here, jurisdiction is based

on diversity of citizenship, we have a duty to apply the forum

state’s jurisprudence.12       Further, where, as here, we are asked to

resolve a sovereign immunity question in a diversity of citizenship

case, we must defer to the sovereign immunity law of the forum

state.13

       Under Texas law, immunity from liability and immunity from

suit    are   two   distinct   principles.14   Immunity   from   liability

protects the State from a judgment against it even if the State

legislature has expressly consented to suit; in contrast, immunity

from suit bars an action against the State unless the State

expressly consents to suit.15         The City concedes that it waived

immunity from liability by accepting the deed-restricted conveyance

of land from the Tenisons.          It thus only asserts immunity from

suit, not liability.

       We note at the outset that under Texas law, a suit against a

municipality or its agencies arising out of the performance of its

governmental duties or to recover for alleged breach of a contract

is deemed to be a suit against the State of Texas for purposes of


       12
              Erie R. Co. v. Tompkins, 304 U.S. 64, 79-80 (1938).
       13
              Tompkins v. El Paso, 449 F.2d 842, 844 (5th Cir. 1971).
       14
              Id. at 405.
       15
              Id.
                                No. 01-11398
                                    -11-

state sovereign immunity unless some special exception applies.16

The Webbs     principally     aver    that    immunity   from      suit   has   been

expressly waived by statute and by express provisions of the Dallas

City Charter and, alternatively, that immunity from suit has been

waived by the City’s conduct in accepting the deed-restricted

conveyances here.       The City disagrees with both arguments.

     Before turning to the question of waiver of immunity from suit

under Texas law, however, we briefly address the Webbs’ initial

contention that the doctrine of sovereign immunity does not even

apply to the instant lawsuit because this is an action in rem to

recover title to and possession of land.

             1.      In Rem Proceeding

     The Webbs essentially contend that sovereign immunity does not

bar this proceeding because they are simply seeking a declaration

of what already belongs to them.              It is true that an entity or

person whose rights have been violated by the unlawful action of a

state     official    may   bring    suit    against   that     state     official,

individually, to remedy the violation or prevent its occurrence and

that such a suit is not a suit against the State requiring

statutory    authorization     because       the   conduct    of   the    agent   or


     16
          See Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 408
(Tex. 1997); Gates v. City of Dallas, 704 S.W.2d 737, 738 (Tex.
1986); Cranford v. City of Pasadena, 917 S.W.2d 484, 487 (Tex.
App. – Houston [14th Dist.] 1996, no writ); Avmanco, Inc. v. City
of Grand Prairie, 835 S.W.2d 160, 165 (Tex. App. – Fort Worth
1992, writ dism’d as moot).
                              No. 01-11398
                                  -12-

official is unauthorized and thus “ultra vires.”17         However, the

claims raised by the Webbs do not fall within this narrow class of

claims    excepted   from   the   general    rule   requiring   statutory

authorization to maintain a suit against the State.18           The Webbs

have not sued officials in their individual capacities, and the

Texas Supreme Court has clearly held that suits against the State

or its agencies for title to land or suits against the State or its

agencies seeking injunctive relief to enforce contractual rights


     17
          See, e.g., Tex. Highway Comm’n v. Tex. Assoc. of Steel
Importers, Inc., 372 S.W.2d 525, 530 (Tex. 1963) (concluding that
legislative consent was not required to bring a declaratory
judgment suit against the Highway Commission); Cobb v.
Harrington, 190 S.W.2d 709, 712 (Tex. 1945) (holding that
legislative consent was not required for a declaratory judgment
suit against the State Comptroller to determine the
constitutionality of a tax statute).
     18
          See, e.g., Tex. Natural Resource Conservation Comm’n v.
IT - Davy, 74 S.W.3d 849, 861 (Tex. 2002) (making clear that a
plaintiff cannot circumvent the doctrine of sovereign immunity by
seeking declaratory relief that essentially resolves a breach of
contract issue); Federal Sign v. Tex. S. Univ., 951 S.W.2d 401,
408 (Tex. 1997) (holding that a suit seeking injunctive relief to
enforce contractual rights is necessarily a suit against the
State that cannot be maintained without legislative permission);
State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961) (concluding that a
suit for title to land against the State or its agency cannot be
maintained without legislative consent); Herring v. Houston Nat’l
Exchange Bank, 253 S.W. 813, 814 (Tex. 1923) (stating that a suit
against state officers to require them to perform a contract by
the State or to establish the validity of a contract by the State
is a suit against the State itself); Tex. Parks & Wildlife Dept.
v. W.M. Callaway, 971 S.W.2d 145, 152 (Tex. App. – Austin 1998,
no writ) (holding that “[a]lthough [plaintiff’s] request for
declaratory relief is not premised expressly on breach of
contract,” legislative consent is still required because, in
essence, the plaintiff is seeking a declaration of his rights
under the easement and an order enforcing those rights).
                             No. 01-11398
                                 -13-

are necessarily suits against the State requiring legislative

authorization to sue.19      Further, we note that in addition to

injunctive and declaratory relief, the Webbs also seek legal relief

in the form of an accounting and money damages for the City’s

alleged breach of the covenants and of the Dallas City Charter.

Thus, their in rem distinction is misplaced.20

            2.   Express Waiver of Sovereign Immunity

     The Webbs persuaded the district court that the City had

expressly   waived   its   immunity   from   suit.   The   Texas   Local

Government Code states that home-rule municipalities, such as the

City of Dallas, “may plead and be impleaded in any court.”21

Further, the Dallas City Charter states that the City of Dallas

shall have the power “to sue and be sued.”22         The Dallas City

     19
           IT - Davy, 74 S.W.3d at 861; Federal Sign, 951 S.W.2d
at 408;   Lain, 349 S.W.2d at 582.
     20
          See, e.g., Federal Sign, 951 S.W.2d at 404-05
(claimants seeking both equitable and legal relief were required
to secure legislative consent to sue the state agency).
     21
            Section 51.075 of the Texas Local Government Code,
entitled “Authority Relating to Lawsuits,” states that “[t]he
municipality may plead and be impleaded in any court.” TEX. LOCAL
GOV’T CODE ANN. § 51.075 (Vernon 1999).
     22
          Section 1(2) of Chapter II, entitled “Powers of the
City,” of the Dallas City Charter provides, in relevant part,
that,

     The City of Dallas, as such body politic and corporate,
     shall have perpetual succession and shall have the
     following powers:
          (1) to use a corporate seal;
          (2) to sue and be sued;
                              No. 01-11398
                                  -14-

Charter provision does not restrict the forum for suits against the

City to courts of the State.23        The district court relied on these

two provisions to find an express waiver of sovereign immunity from

suit here. The City argues this conclusion is in error, contending

that the code and charter provisions relied on by the district

court are simply confirmations that the City of Dallas has the

corporate capacity to sue and be sued.        Alternatively, buttressing

its argument    with   four   state    decisions   from   Texas   courts   of

appeals, it seeks to have this court certify the express waiver

issue to the Texas Supreme Court as an “unsettled” question of

state law.

     In Missouri Pacific Railroad Co. v. Brownsville Navigation

District,24 the Texas Supreme Court held that a statute with

language similar to that found in § 51.075 and the Dallas City

Charter provision waived immunity from suit.         The statute in that

case states that,

     All navigation districts . . . may sue or be sued in all
     courts of this state in the name of such navigation
     district, and all courts of this state shall take



          (3)   to plead and be impleaded in all courts;
          (4)   to institute and prosecute suits without
                giving security therefore, and to appeal from
                judgments of the courts . . . .

Dallas, Tex., Charter ch. II, § 1(2) (1999).
     23
          Id.
     24
          453 S.W.2d 812 (Tex. 1970).
                                No. 01-11398
                                    -15-

      judicial notice of the establishment of all districts.25


The Texas Supreme Court stated that this language “quite plain[ly]”

“gives general consent for District to be sued in the courts of

Texas” such that immunity from suit is expressly waived.26

      More recently, in Travis County v. Pelzel & Assoc.,27 the Texas

Supreme Court again addressed whether a statute “clearly and

unambiguously” waives the State’s immunity from suit.              Section

89.004(a), entitled “Presentation of Claim,” provides that “[a]

person may not sue on a claim against a county unless the person

has   presented   the   claim   to   the   commissioners   court   and   the

commissioners court has neglected or refused to pay all or part of

the claim.”28     The court held that this language did not waive

Travis County’s immunity from suit because the statute did not

state clearly and unambiguously that Travis County could be sued.

Rather, the court found that the provision just as easily could

simply create a condition precedent to suit.29         Important to this

conclusion was the finding that the original statutory language

providing that the county may “sue and be sued” was deleted in 1879



      25
           Id. at 813 (emphasis added).
      26
           Id.
      27
           77 S.W.3d 246 (Tex. 2002).
      28
           TEX. LOCAL GOV’T CODE ANN. § 89.004(a) (Vernon 1999).
      29
           Pelzel, 77 S.W.3d at 250.
                              No. 01-11398
                                  -16-

to leave text “largely resembling the current statute” in place.30

As stated by the Texas Supreme Court, “well over a hundred years

ago, the Legislature deleted the only language arguably waiving

sovereign   immunity,     suggesting   that    it   intended    to   preserve

counties’ immunity from suit.”31         In so concluding, the court

discussed Missouri Pacific in some detail.            However, it did not

overrule    its   prior    holding.      Instead,      the     Pelzel   court

distinguished the less-than-clear legislative expression of waiver

in the “Presentation of Claim” statute from the “sue and be sued”

language applicable to navigation districts found by the Missouri

Pacific court to “quite plain[ly]” waive immunity from suit.32

     As stated, the City asserts that four Texas courts of appeals

have held that similar “sue and be sued” provisions do not waive

the State’s immunity from suit.33             While this is an accurate

statement of Texas law, it is a well-settled principle that in

diversity cases, we “seek guidance by looking to the precedents

established by intermediate state appellate courts” only when the


     30
            Id. at 249-50.
     31
            Id. at 250.
     32
            Id.
     33
          See, e.g., City of Dallas v. Reata Constr. Corp., 83
S.W.3d 392, 398 (Tex. App. – Dallas 2002, no pet.); Jackson v.
City of Galveston, 837 S.W.2d 868, 871 (Tex. App. – Houston [14th
Dist.] 1992, writ denied); Townsend v. Memorial Med. Ctr., 529
S.W.2d 264, 267 (Tex. Civ. App. – Corpus Christi 1975, writ ref’d
n.r.e.); Childs v. Greenville Hosp. Auth., 479 S.W.2d 399, 401
(Tex. Civ. App. – Texarkana 1972, writ ref’d n.r.e.).
                              No. 01-11398
                                  -17-

state supreme court has not spoken on an issue or there has been

some intervening change in the law that requires us to make an Erie

guess regarding how the Texas Supreme Court would most likely

decide an issue.34    Here, the Texas Supreme Court has addressed the

question we are called upon to now answer, and the state appellate

court decisions cited by the City do not persuade us to veer from

this precedent.      The cases cited by the City, for the most part,

either follow pre-Missouri Pacific law or completely fail to

mention Missouri Pacific.35    Moreover, as argued by the Webbs, the

City’s argument that the “sue and be sued” provision is just a

recognition of its corporate capacity to sue and be sued is also

belied by the fact that the vast majority of state courts of

appeals to address the express legislative waiver question in the

context of similar “sue and be sued” clauses follow Missouri

     34
          Howe v. Scottsdale Ins. Co., 204 F.3d 624, 628 (5th
Cir. 2000); see also Herrmann Holdings Ltd. v. Lucent Techs.
Inc., 302 F.3d 552, 558 (5th Cir. 2002) (“[I]n deciding this
case, we are required to make an Erie guess as to what the Texas
Supreme Court would most likely decide.”)
     35
          See, e.g., Reata Constr. Corp., 83 S.W.3d at 398
(following Jackson (discussed infra) without citing to Missouri
Pacific, to find the “sue and be sued” provision “simply speak[s]
to the City’s capacity to sue and its capacity to be sued when
immunity has been waived.”) (emphasis in original); Jackson, 837
S.W.2d at 871 (simply following Townsend (discussed infra)
without analysis); Townsend, 529 S.W.2d at 267 (relying solely on
Childs (discussed infra), which, in turn, relied solely on cases
decided before Missouri Pacific, to hold that a hospital district
is immune from suit despite a “sue and be sued” statutory
provision); Childs, 479 S.W.2d at 401 (relying on pre-Missouri
Pacific cases to find, without discussion, no waiver of immunity
from suit).
                          No. 01-11398
                              -18-

Pacific as controlling Texas Supreme Court precedent.36



     We find controlling Texas Supreme Court authority for the

district court’s holding that the City has expressly waived its

immunity from suit in this case and see no need to certify the




     36
          See, e.g., Tarrant County. Hosp. Dist. v. Henry, 52
S.W.3d 434, 448 (Tex. App. – Fort Worth 2001, no pet.) (“It is
well settled that this type of [sue and be sued] statutory
provision is a consent to suit, resulting in waiver of immunity
from suit.”); Alamo Comm. Coll. Dist. v. Obayashi Corp., 980
S.W.2d 745, 748 (Tex. App. – San Antonio 1998, pet. denied)
(stating that “[b]y subjecting junior college districts [] to the
same general law applicable to independent school districts
[through a provision that states the district can sue and be
sued], it appears to us, clearly and unambiguously, the Texas
Legislature granted its consent to sue junior college community
districts and we so hold”); Engelman Irrigations Dist. v. Shields
Bros., Inc., 960 S.W.2d 343, 347 (Tex. App. – Corpus Christi
1997) (finding that the irrigation district was not entitled to
immunity from suit because of a “sue and be sued” clause), pet.
denied per curiam, 989 S.W.2d 360 (Tex. 1998); Knowles v. City of
Granbury, 953 S.W.2d 19, 23 (Tex. App. – Fort Worth 1997, pet.
denied) (“As a home-rule municipality, Granbury may sue and be
sued. Had it wanted to exempt itself from liability, it could
have . . . Because the Local Government Code and Granbury’s
charter provide that the city may be sued, its immunity from suit
is [] waived.”); Avmanco, Inc. v. City of Grand Prairie, 835
S.W.2d 160, 165 (Tex. App. – Fort Worth 1992, writ dism’d as
moot) (“While there is no general law waiving the State’s
immunity from suit where liability is sought because of breach of
contract, the City is liable here because both the State and the
City have enacted legislation providing their respective consents
to suits against the City. Furthermore, the city charter of
Grand Prairie itself provides that the City may sue and be
sued.”); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 593
& n.3 (Tex. App. – Austin 1991, writ denied) (concluding that
through a “sue and be sued” provision, the Texas Legislature gave
its consent for an independent school district to be sued).
                                 No. 01-11398
                                     -19-

question of express waiver to the Texas Supreme Court.37               Express

legislation provides that the City may be sued.                As a home-rule

municipality, the City may exempt itself from suit.                It has not

done so here.

       As its resolution is not essential to our holding, we do not

address the Webbs’ final argument that the City waived its right to

assert immunity from suit by “accepting the benefits of the gifts,

subject to the terms and conditions thereof.”

                              IV.     CONCLUSION

       Plaintiffs      have   asserted   a   claim     in   this   controversy

sufficient to satisfy the jurisdictional requirements of Article

III.        Further,   sovereign    immunity    from    suit   does   not   bar

Plaintiffs’ suit against the City of Dallas.                   We AFFIRM the

district court’s order insofar as it denied the City sovereign

immunity from suit.




       37
          See Vaught v. Showa Denko K.K., 107 F.3d 1137, 1142
(5th Cir. 1997) (holding that certification “is appropriate only
if it appears to the certifying court that there is no
controlling precedent in the decisions of the Supreme Court of
Texas”) (internal quotation omitted).
