Texas Law and Section 271 Contractual Waiver’s of Governmental Immunity to Suit

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Jason B. Freeman

Jason B. Freeman

Managing Member


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

Under Texas law, school districts are generally immune from suit and liability unless the legislature expressly waives governmental immunity. Generally, absent an express legislative waiver, such as that contained in section 271.152 of the Texas Local Government Code, school districts are governmental units that enjoy governmental immunity from lawsuits for damages.

Section 271’s Waiver of Immunity to Suit

Texas Local Government Code section 271.152 waives qualifying local governmental entities’ immunity from suit for specified breach of contract claims:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.

TEX. LOC. GOV’T CODE ANN. § 271.152. This waiver, however, is only applicable to two types of contracts:

(A) a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity; or

(B) a written contract, including a right of first refusal, regarding the sale or delivery of not less than 1,000 acre-feet of reclaimed water by a local governmental entity intended for industrial use.

Id. § 271.151.

Waiver of Immunity to Liability by Entering into Contract, Generally

As a general proposition, however, when a governmental entity contracts with a private party, it waives immunity to liability.  But that waiver, standing alone, does not constitute a waiver of immunity to suit, which is separate and distinct from a waiver of liability.  The proposition can seem like a bit of a head-scratcher.  But it is well established in Texas law.

That is, 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. It binds itself like any other party to the terms of the agreement.  But the State does not waive immunity to 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 to suit defeats a trial court’s subject matter jurisdiction.  Section 271 stands as one of the more common legislative waiver of governmental immunity to suit.

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.


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. Schedule a consultation or call (214) 984-3000 to discuss your concerns or questions.