Governmental Immunity Under Texas Law

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Jason B. Freeman

Jason B. Freeman

Managing Member

214.984.3410
jason@freemanlaw.com

Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine , a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

Governmental Immunity

Although often used interchangeably, the terms sovereign immunity and governmental immunity involve two distinct concepts.  Sovereign immunity protects the State and divisions of state government (including agencies, boards, hospitals, and universities) from lawsuits for damages. Sovereign immunity embraces two distinct principles: immunity from suit and immunity from liability.

Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.  Like sovereign immunity, it also encompasses immunity from suit and from liability. Governmental immunity is an extension or application of the State’s sovereign immunity, the age-old, common-law doctrine that shields the State, its agencies, and generally its officials from suit.  Although Texas case law recognizes a distinction between sovereign immunity and governmental immunity, the two concepts function identically.

The Derivative Nature of Governmental Immunity

Ultimately, a political subdivision’s immunity (governmental immunity) derives from and is limited by the state’s sovereign immunity:

Texas is inviolably sovereign. Such sovereignty is inherent in its statehood, and generally protects the state from suits for money damages. Political subdivisions of the state—such as counties, municipalities, and school districts—share in the state’s inherent immunity. But they represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them. Therefore, in the realm of sovereign immunity as it applies to such political subdivisions—referred to as governmental immunity—this Court has distinguished between those acts performed as a branch of the state and those acts performed in a proprietary, non-governmental capacity. Consistent with the understanding that a municipality’s immunity extends only as far as the state’s but no further, we have long held that a municipality is not immune from suit for torts committed in the performance of its proprietary functions, as it is for torts committed in the performance of its governmental functions.

Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429–30 (Tex. 2016) (Wasson I) (citations, footnotes, quotation marks and modifications omitted).

Immunity From Suit and Immunity From Liability, Distinguished

Immunity from suit bars a suit against a governmental entity without the State’s consent.  Even if the State concedes liability, immunity from suit prevents a lawsuit from being maintained to seek a remedy, unless the State consents, either through a constitutional provision or legislative action. The Legislature, however, may consent by statute or by legislative resolution.  Under Texas law, a statutory waiver of immunity must be effected by clear and unambiguous language.

Immunity from liability prevents enforcement of a judgment, even if the Legislature has given consent to sue.  And under Texas law, the Legislature does not create or admit liability by granting permission to sue.

However, sovereign immunity does not prohibit suits against a state official or officer of a state entity if the official’s actions are ultra vires.

Waiver of Immunity

Absent a clear and unambiguous expression of the Legislature’s intent to waive immunity, either from suit or liability, sovereign immunity will protect the State and its subdivisions from both suit and liability.  The Texas Supreme Court has recognized that it is the Legislature’s sole province to waive or abrogate sovereign immunity, and that sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State.

Several Texas statutes provide for express waivers of immunity, including Chapter 271 of the Texas Local Government Code; the Texas Whistleblower Act; and the Texas Tort Claims Act.

Waiver of Immunity to Liability by Entering into Contract

When the State contracts, it is generally liable on contracts made for its benefit as if it were a private person. As a result, when the State contracts with private citizens it waives immunity from liability. That is, it binds itself like any other party to the terms of the agreement.  But the State does not waive immunity from suit simply by contracting with a private person. Legislative consent to sue is still necessary to obtain jurisdiction.

Thus, in order to bring suit against a governmental entity for breach of contract, a plaintiff must establish legislative consent to sue by bringing suit pursuant to a special statute or by obtaining a legislative resolution. Otherwise, governmental immunity from suit defeats a trial court’s subject matter jurisdiction.

 

Lawsuits Involving Governmental Immunity

Freeman Law represents clients in matters involving governmental immunity, sovereign immunity, and exceptions to the immunity doctrines, as well as other complex civil litigation.