Joleewu, Ltd., Plaintiff-appellant, v. City of Austin, Defendant-appellee, 934 F.2d 621 (5th Cir. 1991)

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U.S. Court of Appeals for the Fifth Circuit - 934 F.2d 621 (5th Cir. 1991) June 13, 1991. Rehearing Denied July 24, 1991

Robert D. Lybrand, Dallas, Tex., for plaintiff-appellant.

Susan Lefler, Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas; Walter S. Smith, Jr., Judge.


(Opinion November 11, 1990, 5th Cir. 916 F.2d 250)

Before JONES, DUHE and WEINER, Circuit Judges.


IT IS ORDERED that appellant's motion for leave to file a petition for rehearing out of time is granted to the extent herewith explained.

Joleewu, Ltd., asks us to reconsider that portion of our prior opinion which affirmed the dismissal of its claim against the City of Austin founded on Tex.Bus.Comm.Code Sec. 27.01, covering fraud in real estate transactions. When the opinion was issued, no Texas cases had considered whether municipalities were immune from suit under this law, but a Texas court of appeals decision rendered shortly afterward suggested that immunity may not be a defense. Kerrville HRH, Inc. v. City of Kerrville, 803 S.W.2d 377, 382-83 (Tex.Ct.App.1990). Because we already have decided to remand this case, and our decision on sovereign immunity now appears open to question under Texas law, we VACATE that portion of our earlier opinion construing Sec. 27.01 and REMAND that issue for further consideration by the trial court. Our prior ruling and judgment are otherwise unchanged.