law-sovereign-immunity | governmental immunity |
Texas Tort Claims Act Waiver of Immunity |

SOVEREIGN IMMUNITY

The State’s immunity is referred to as sovereign immunity, while that of political subdivisions of the State
is referred to as
governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374
(Tex. 2006).

The State of Texas cannot be sued in its own courts without its consent and, then, only in the manner
indicated by that consent. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003)
(citing Hosner v. De Young, 1 Tex. 764, 769 (1847)). For the legislature to waive the state’s sovereign
immunity, a statute or resolution must contain a clear and unambiguous expression of the legislature’s
waiver of immunity. Taylor, 106 S.W.3d at 696. In other words, a statute that waives the state’s immunity
must do so beyond a doubt. See id. at 697. When construing a statute that purportedly waives sovereign
immunity, we generally resolve ambiguities in favor of the state’s retaining its immunity. See id.
Where the state has not given its consent to suit, a trial court lacks subject matter jurisdiction. See Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999). Sovereign immunity from suit is properly
asserted by a plea to the jurisdiction. See id. Subject matter jurisdiction is essential to the authority of the
trial court to decide a case. Starkey v. Andrews Center, 104 S.W.3d 626, 628 (Tex. App.–Tyler 2003, pet.
denied). Whether a court has subject matter jurisdiction is a question of law that we review de novo. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

WHAT IS THE PURPOSE OF SOVEREIGN IMMUNITY?

“‘Sovereign immunity protects the State from lawsuits for money damages.’” Reata Const. Corp.
v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)(quoting Tex. Natural Res. Conservation
Comm’n v. IT–Davy, 74 S.W.3d 849, 853 (Tex. 2002). This immunity, referred to as
governmental immunity, is extended to cities unless it has been waived by the Legislature. City of
Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). The “Legislature has mandated that no
statute should be construed to waive immunity absent ‘clear and unambiguous language.’” Id.;
See TEX. GOV’T CODE ANN. § 311.034 (West Supp. 2010)(“In order to preserve the
legislature’s interest in managing state fiscal matters through the appropriations process, a
statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by
clear and unambiguous language.”); see also Tooke v. City of Mexia, 197 S.W.3d 325, 370 (Tex.
2006). As a general rule, ambiguity as to waiver is resolved in favor of retaining immunity. Harris
Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 844 (Tex. 2009).

The doctrine of sovereign immunity refers to the State's immunity from suit and liability. Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003). "In addition to protecting the State from liability,
it also protects the various divisions of state government, including agencies, boards, hospitals, and
universities." Id. at n.3. We take judicial notice that TDCJ is a state agency. Turner argues that the Texas
Tort Claims Act waives sovereign immunity because his claims originate from the condition or use of
tangible personal property. The Tort Claims Act provides a limited waiver of sovereign immunity "when
personal injury or death is caused by a `use of tangible personal or real property . . . .'" Tex. A&M Univ. v.
Bishop, 156 S.W.3d 580, 583 (Tex. 2005) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)).

In addition, sovereign immunity under the Eleventh Amendment protects a state agency from a suit under
42 U.S.C.A. § 1983. Turner brought suit against only the TDCJ. A state agency is not a "person" who can
be held liable under 42 U.S.C.A. § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)
("Section 1983 . . . does not provide a federal forum for litigants who seek a remedy against a State . . .
."); see U.S. CONST. amend. XI; Turner v. Tex. Dep't of Mental Health & Mental Retardation, 920 S.W.2d
415, 418 (Tex. App.-Austin 1996, writ denied).

SOVEREIGN IMMUNITY DOCTRINE IN TEXAS

“Sovereign immunity protects the State from lawsuits for money damages.” Tex.
Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). But
“an action to determine or protect a private party’s rights against a state official who
has acted without legal or statutory authority is not a suit against the State that
sovereign immunity bars.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.
1997).
City of El Paso v. Heinrich, No. 06-0778 (Tex. May 1, 2009)(Jefferson)
(
governmental immunity)(retrospective monetary relief barred; prospective relief against official capacity
defendant not barred by immunity,
no individual-capacity claims, ergo official immunity inapplicable)

The State of Texas is protected from suits for damages by sovereign immunity,
unless waived by statute. Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39
S.W.3d 591, 594 (Tex. 2001);
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per
curiam). Legislative consent to waive sovereign immunity by statute must be by “clear and unambiguous
language,” TEX. GOV’T CODE § 311.034, and suit can then be brought “only in the manner indicated by
that consent.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003) (citing Hosner v.
DeYoung, 1 Tex. 764, 769 (1847)). “[W]hen construing a statute that purportedly waives sovereign
immunity, we generally resolve ambiguities by retaining immunity.” Wichita Falls State Hosp., 106 S.W.3d
at 697.
TxDoT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam) (TTCA, dangerous road conditions,
special defect)

RECENT SOVEREIGN IMMUNITY RULINGS FROM THE TEXAS
SUPREME COURT | Also see -->
Texas Tort Claims Act (TTCA) Appeals

City of Dallas v. Albert, No. 07-0284 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)
(multiple governmental immunity and waiver-of-immunity issues)
This appeal involves a pay dispute between the City of Dallas and many of its police officers and
firefighters. Pursuant to a referendum approved by the voters, the City adopted an ordinance addressing
the pay of "each sworn police officer and fire fighter and rescue officer employed by the City of Dallas."
Claiming the City did not properly pay them according to the ordinance, some firefighters and police
officers (collectively, the Officers) sued the City. They sought both a declaratory judgment construing the
ordinance and damages for breach of contract. The City counterclaimed, alleging that if the Officers had
not been paid correctly, they had been overpaid instead of underpaid and the City was entitled to
reimbursement for the overpayments. The City eventually sought dismissal of the Officers' claims on the
basis of governmental immunity, then later dismissed its counterclaim. The trial court denied the City's
immunity claim and this interlocutory appeal followed. During the pendency of the appeal, the Legislature
amended the Local Government Code to provide for a limited, retroactive waiver of certain local
governmental entities' immunity from suit.
The main issues before us involve governmental immunity from suit. We will address the issues in the
order that the court of appeals did: (1) what is the effect on the City's immunity of its filing, then non-
suiting, the counterclaim; (2) what is the effect, if any, of the Legislature's retroactive waiver of immunity;
(3) whether the City has immunity from the Officers' declaratory judgment action; and (4) whether the City
lacks immunity from suit because the pay ordinance was adopted by referendum. We conclude that (1)
by nonsuiting its counterclaim the City did not reinstate complete immunity from the Officers' pending
claims; (2) the case must be remanded for the trial court to consider whether, by amending the Local
Government Code, the Legislature waived the City's immunity; (3) the City has immunity from the
declaratory judgment action; and (4) the ordinance having been adopted by referendum did not result in
waiver or abrogation of the City's immunity.
CITY OF DALLAS v. KENNETH E. ALBERT, ET AL.; from Collin County; 5th district (05-03-01297-CV, 05-
03-01298-CV, 214 SW3d 631, 12-21-06) 2 petitions
motion to strike response to notice regarding counsel denied; motion to strike notice of appearance
denied; motion to consider cause denied    
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court, in which Justice Wainwright, Justice Medina,
Justice Green, Justice Guzman, and Justice Lehrmann joined, and in which Chief Justice Jefferson and
Justice Hecht joined except to Part II-B. [
pdf]
Justice
Hecht delivered an opinion concurring in part and dissenting in part, in which Chief Justice
Jefferson joined. [
pdf]
Justice
Willett delivered a dissenting opinion. [pdf]
Link to e-briefs:
CITY OF DALLAS v. ALBERT    

Texas Parks & Wildlife Department v. The Sawyer Trust, No. 07-0945 (Tex. Aug. 26, 2011)
(
Opinion by Justice Johnson)(sovereign immunity issue, takings claim, opportunity to replead and assert
ultra vires claim)
This appeal involves the issue of whether the trial court had jurisdiction over a claim against the Texas
Parks and Wildlife Department to determine whether the Salt Fork of the Red River is navigable. The
Sawyer Trust sued the Department for a declaratory judgment that the river is not navigable and that the
Trust owns the riverbed where it crosses the Trust's property in Donley County. The Department filed a
plea to the jurisdiction based on sovereign immunity. After the Department took the position that the river
was navigable—and the State therefore owned the riverbed—the Trust added a constitutional takings
claim. The trial court denied the Department's plea and the court of appeals affirmed.
We hold that the Trust's claims for a declaratory judgment are barred by sovereign immunity and the
Trust cannot assert a takings claim under these circumstances. We also hold, however, that the Trust is
entitled to replead and attempt to assert an ultra vires claim against state officials if it chooses to do so.
We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.
TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST; from Donley County; 7th district
(07-06-00487-CV, ___ SW3d ___, 08-22-07)    
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright,
Justice Medina, Justice Green, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [
pdf]
Chief
Justice Jefferson delivered a concurring opinion, in which Justice Medina, Justice Willett, and
Justice Guzman joined. [
pdf]
Justice
Hecht delivered an opinion concurring in part and dissenting in part.
Link to e-briefs:
TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST    

Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), holding that, "for purposes of section 101.106(f), a
tort action is brought `under' the Texas Tort Claims Act, even if the government has not waived its
immunity for such actions." Franka, 332 S.W.3d at 370-71; Romero v. Lieberman, 332 S.W.3d 403, 404
(Tex. 2011) (per curiam).
    Section 101.106 is a part of the TTCA. Section 101.106(e) reads as follows:
       (e) If a suit is filed under this chapter against both a governmental unit and any of its employees,
    the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
    Tex. Civ. Prac. & Rem. Code § 101.106(e). The Texas Supreme Court has made clear that all
    common-law tort theories alleged against a governmental unit are assumed to be under the TTCA.
    Franka v. Velasquez, 332 S.W.3d 367, 369, 379, 385 (Tex. 2011).

Trend Offset Printing Services, Inc. v. Collin County Community College District (CCCCD)  No. 06-0525
(Tex. Mar. 28, 2008)(per curiam) (governmental immunity, breach of contract, statutory waiver)
TREND OFFSET PRINTING SERVICES, INC. v. COLLIN COUNTY COMMUNITY COLLEGE DISTRICT;
from Collin County; 5th district (05-05-00456-CV, ___ S.W.3d ___, 04-27-06)
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.

City of Dallas v. DeQuire, No. 06-0543 (Tex. Mar. 28, 2008)(per curiam)
(
local governmental entities, immunity waiver)
CITY OF DALLAS v. DWIGHT DEQUIRE, MICHAEL FELINI, TERRANCE HOPKINS AND LEROY QUIGG;
from 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.

Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam) (governmental
immunity, county vs county dispute over wrongfully collected
property taxes)
NUECES COUNTY v. SAN PATRICIO COUNTY; from Refugio County; 13th district (13-05-00022 CV, 214
S.W.3d 536, 12-07-2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court vacates the court of appeals' judgment and renders judgment.


RECENT COURTS OF APPEALS DECISIONS ON SOVEREIGN IMMUNITY IN
WHICH TEXAS SUPREME COURT DENIED REVIEW

07‑0145  
ALBERT HAWKINS, EXECUTIVE COMMISSIONER OF THE TEXAS HEALTH AND HUMAN SERVICES
COMMISSION, ET AL. v. EL PASO FIRST HEALTH PLANS, INC. AND COMMUNITY HEALTH CHOICE,
INC.; from Travis County; 3rd district (
03‑04‑00663‑CV, 214 SW3d 709, 01-11-07)
The trial court correctly denied the Commission's plea to the jurisdiction because sovereign immunity does not protect a
state agency from a suit brought by a party claiming that the state agency has acted outside of its authority and seeking to
determine the proper construction of the applicable statutes and to obtain a declaration of the party's rights under the
statutes. See IT-Davy, 74 S.W.3d at 855. On this basis, we overruled the Commission's second issue.
The declarations issued by the trial court regarding the eligibility and retroactive disenrollment of SSI-eligible children from
Community Health Choice's STAR MCO, both within and outside of Harris County, and from El Paso First's CHIP MCO
across Texas were consistent with the applicable provisions in the state and federal statutes, administrative rules, and
various contracts governing these parties. On this basis, we overruled the Commission's first issue.
Having overruled both issues raised by the Commission on appeal, we affirm the trial court's judgment.

08-0364  
GARRY DAVID GALLARDO v. JOE D. TACKITT, SHERIFF OF WILSON COUNTY, TEXAS; WILSON
COUNTY, TEXAS; AND UNKNOWN INDEMNIFYING BOND COMPANIES FOR THE SHERIFF AND WILSON
COUNTY, TEXAS; from Wilson County; 4th district (04-07-00635-CV, ___ SW3d ___, 04-02-08, pet.
denied) (sovereign immunity, official capacity)

08-0426  
POLANCO & COMPANY, L.L.C. v. THE CITY OF SAN ANTONIO; from Bexar County; 4th district
(
04-07-00258-CV, ___ SW3d ___, 10-31-07, pet. denied) (governmental immunity, food service)





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