Leach v. Tex. Tech Univ.

335 S.W.3d 386

266 Ed. Law Rep. 524

Mike LEACH, Appellant,

v.TEXAS TECH UNIVERSITY, Appellee.

No. 07–10–0247–CV.

Court of Appeals of Texas,Amarillo,Panel D.

Jan. 20, 2011.

Ted A. Liggett, Christopher C. Ritter, The Liggett Law Group, Lubbock, Paul J. Dobrowski, Frederick T. Johnson, Dobrowski L.L.P., Houston, for Appellant.Sean D. Jordan, Deputy Solicitor Gen., Adam W. Aston, Asst. Solicitor Gen., Daniel C. Perkins, Lynn E. Carter, Peter Hansen, Asst. Attys. Gen., Richard Alan Grigg, Spivey & Grigg, L.L.P., Austin, for Appellee.Pat G. Lochridge, McGinnis, Lochridge & Kilgore, LLP, Terry Scarborough, Hance & Scarborough, LLP, Austin, Scott R. McLaughlin, Jackson Walker, L.L.P., Houston, James L. Wharton, Jones Flygare Brown & Wharton, P.C., Lubbock, R. Rogge Dunn, Clouse Dunn Khoshbin LLP, Stephen C. Rasch, Thompson & Knight, L.L.P., Dallas, for Real Party in Interest.Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Opinion

BRIAN QUINN, Chief Justice.

All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.¹

The issues before us today implicate the above quoted section of our state constitution. We have been asked to determine whether the common law doctrine of sovereign immunity barred the suit of Mike Leach against Texas Tech University (the University), its Chancellor Kent Hance, its regents Jerry Turner and Larry Anders, its president Guy Bailey, its athletic director Gerald Myers, and its employee/attorney Charlotte Bingham. Applying the doctrine via a plea to the court's jurisdiction, the trial court dismissed all but one cause of action averred by Leach. The one remaining encompassed the allegation of breached contract. The trial court refused to dismiss it because the University “by and through its conduct ... waived [its] immunity from suit ...” We affirm in part, reverse in part, and render in part the trial court's order.

Standard of Review

Who did what to whom and why is not something this court will decide. Nor do we address the veracity of any of the many accusations levied by the parties against each other and third parties. That is not within our authority when addressing whether a trial court acted properly in granting a plea to its jurisdiction. This is so because such a plea focuses upon the trial court's authority to eventually adjudicate the dispute on its merits; it is not itself an adjudication on the merits.

Next, a plea to the trial court's jurisdiction likens to a motion for summary judgment. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). So, the jurist considering it is obligated to 1) interpret the pleadings in a light most favorable to the party attempting to sustain the court's jurisdiction, i.e. Leach, 2) accept as true all evidence favorable to that party, and 3) indulge in every reasonable inference arising from the evidence and favorable to him. Id.; accord City of Elsa v. Gonzalez, 325 S.W.3d 622, 626 (Tex.2010).

A Simplistic Review of History

Given the nature of the issues at bar, it is helpful to delve into the history underlying the doctrine of sovereign immunity. The latter found its genesis in old England. Then, as most will admit, the king (or queen as the case may be) was omnipotent. No inherent authority belonged to those over whom he lorded. Kemper v. State, 63 Tex.Crim. 1, 138 S.W. 1025, 1043 (1911), overruled on other grounds by Robertson v. State, 63 Tex.Crim. 216, 142 S.W. 533 (1911). Rather, any rights or privileges they enjoyed were no greater than those the monarch deigned to bestow on them. Moreover, the judiciary that he created not only recognized this relationship between the king and his people but also deduced from it that since the former was sovereign over all, the latter could not sue him without his approval. Thus, the tenet was of neither legislative nor executive origin. Instead, judges simply declared it to be law.² Tex. A & M University–Kingsville v. Lawson, 87 S.W.3d 518, 520 (Tex.2002) (stating that “the bar of sovereign immunity is a creature of the common law and not of any legislative enactment”).

With the discovery and population of the New World, our forefathers were called upon to establish their own system of government. Having rebelled against the tyranny of British rule, one would think that they would instill a government of limited powers. Indeed, the constitutional passage written above purports to encapsulate that sentiment. Nonetheless, not all things British were rejected for our own courts adopted much of the common law developed overseas. And, included in that body of law was the doctrine of sovereign immunity. See Harris County Hosp. Dist. v. Tomball Regional Hosp., 283 S.W.3d 838, 844 (Tex.2009) (recognizing sovereign immunity as part of the common law). So, though we have no king and despite the words of article 1, § 2 of our Texas Constitution, the government ( e.g., State, county, and municipalities) and those working for it in their official capacities came to enjoy that created to protect monarchs so many years ago.³

The Law of Sovereign Immunity

We wish not to mislead. It is clear that sovereign immunity is alive and well in Texas. As it now exists, it provides a double shield to the entities it protects. They are insulated from both liability and suit. Tex. A & M University–Kingsville v. Lawson, 87 S.W.3d at 520–21; Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997). That is, one can neither sue for payment nor compel payment from the State without legislative consent. Federal Sign v. Texas S. Univ., 951 S.W.2d at 405. Given this double shield, defeating one still meant the other stood. Take, for instance, the subject of contracts. In Texas, when the State executes such an obligation it loses its immunity from liability. Id. at 405–06. Yet, it remains protected from being forced into litigation via suit. Id. So, while it must perform and, like any other party to a contract, is responsible for its failure to do so, it cannot be sued for damages without its permission if it opts to forego performance. In other situations, the converse is also true; the State may grant someone permission to sue it but retain its insulation from being forced to pay. Id.; Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self–Insurance Fund, 212 S.W.3d 320, 323–24 (Tex.2006) (explaining the nature of the immunity). The logic behind that circumstance is not ours to debate for that is the law as declared by our Supreme Court.

That sovereign immunity extends to state universities is similarly clear. Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Ins. Joint Self–Insurance Fund, 212 S.W.3d at 324. Of less clarity, however, is the manner by which a university or the State, for that matter, waives immunity.

Admittedly, our Supreme Court has declared that it has “consistently deferred to the Legislature” to effectuate waiver. Id. at 326, quoting Tex. Natural Res. Comm'n v. IT–Davy, 74 S.W.3d 849, 854 (Tex.2002). That is, we have been told that only the legislature can remove the insulation. Id. This purportedly is so because that body “is better suited ... to weigh conflicting public policies associated with waiving immunity and subjecting the government to increased liability, the burden of which the public must bear.” Id. Moreover, the legislature accepted the onus of determining when to lower the shield, as exemplified by statutes such as the Texas Tort Claims Act, Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005) (stating when governmental entities may be sued for torts committed by their employees). Legislative writings with that effect, though, tend to be the exception, not the rule. And, that the legislature intends to keep waiver as the exception is borne out by § 311.034 of the Texas Government Code. Via the provision, our representatives declared that “a statute shall not be construed as a waiver ... unless the waiver is effected by clear and unambiguous language.” Tex. Gov't Code Ann. § 311.034 (Vernon Supp.2010). What this means, then, is that unless the words of a statute controlling a particular dispute between the government and its wards clearly and unambiguously specify that one or both aspects of immunity are removed, the governmental entity continues to enjoy its judicially created insulation against paying damages. See City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex.2009) (holding that sovereign immunity protects an entity from suit for monetary, as opposed to equitable, relief).

Reading § 311.034 of the Government Code and our Supreme Court's utterances about deferring to the legislature would seem to belie our prior observation that the manner of waiving immunity falls short of clear. But, they do not; instances continue to arise supporting our observation. For example, in Tex. A & M University–Kingsville v. Lawson, the Supreme Court had before it a factual scenario involving the university's refusal to abide by a settlement agreement. The latter encompassed the resolution of a whistleblower claim. And, though the legislature waived its immunity from suits founded upon such claims per § 554.0035 of the Texas Government Code, Tex. A & M University–Kingsville v. Lawson, 87 S.W.3d at 521 (so stating), it said nothing about the waiver encompassing agreements settling those suits. Id. Neither that omission nor the prior comments about deferring to the legislature dissuaded a majority of the Texas Supreme Court, though, from concluding that Lawson was not barred by sovereign immunity from suing Texas A & M for...