immunity doctrine in Texas

2021Best v. Harper, 562 S.W.3d 1, 17 (Tex. 2018), the Supreme Court of Texas has continued to “prune[] and shape[] the doctrine of immunity.” Wasson Ints., 489 S.W.3d at 432, 434 (finding immunity does not apply to contract claims against cities arising out of their performance of proprietary functions); see also, e.g., Brown & Gay Eng’g, 461 S.W.3d at 121 (declining to extend immunity to private contractors authorized to perform governmental functions); Harper, 562 S.W.3d at 19 (deciding immunity does not apply to a counterclaim for attorney’s fees under the Texas Citizens Participation Act); Hil

2020The Court concludes that extending immunity from suit to GTECH for fraud would not serve the immunity doctrine’s purposes, principally, to keep the judiciary out of legislative and executive affairs, and to protect taxpayers from some of the expense of faulty governmental 4 461 S.W.3d 117, 129 (Tex. 2015). 3 decisions.

2014In other words, as the supreme court has recognized, the legislature enacted section 271.152 to “loosen the immunity bar so that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex.2010).

2013The Texas Legislature enacted Section 271.152 “to loosen the immunity bar so that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex.2010).

2011In reference to a former version of 101.106, the Texas Supreme Court has noted that it “reasoned that the phrase, ‘bars any action’, was ‘an unequivocal grant of immunity,’ and that allowing an interlocutory appeal from a refusal to enforce the bar ‘protects public officials asserting an immunity defense from the litigation process.’ ” Franka v. Velasquez, 332 S.W.3d 367 , 371 n. 9 (Tex.2011), quoting Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex.1997).

2011We reasoned that the phrase, "bars any action”, was "an unequivocal grant of immunity”, and that allowing an interlocutory appeal from a refusal to enforce the bar "protects public officials asserting an immunity defense from the litigation process.” Newman, 960 S.W.2d at 622 .

2025City of Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011).

2019City of Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011); Miranda, 133 S.W.3d at 224 .

2023“If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff’s amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff’s action.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); see also Harris 12 Cnty.

2022Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 , 694 & n.3 (Tex. 2003); see also Tex. Civ.

2018In reaching this conclusion, the Court looked to the legislative history of Chapter 271 and explained that “the Legislature intended to loosen the immunity bar so ‘that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.’” Id. at 327 (quoting HOUSE COMM.

2018Tex. Reg’l Planning Comm’n, 516 S.W.3d 483, 485 (Tex. 2016) (reversing court of appeals’s decision that chapter 271 did not apply because Planning Commission’s contracts with Byrdson did not state essential terms “for providing goods or services to the local governmental entity”); Ben Bolt-Palito, 212 S.W.3d at 327 (explaining that “the statute’s legislative history indicates that, by enacting section 271.152, the [l]egislature intended to loosen the immunity bar so ‘that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not

2025“The plaintiff bears the burden of negating [TTCA] Section 101.055’s applicability.” Maspero, 640 S.W.3d at 529 (citing City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex. 2006).

2015See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 (Tex.2006).

2025“In that event, the plaintiff needs to respond not with evidence but with legal argument showing the court that, as a matter of law, its allegations demonstrate an immunity waiver despite the government’s contrary arguments.” Id. 4 III.

2025And the authority on which TAMU primarily relies (Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)) does not authorize a wide-ranging inquiry into the merits, because the merits and jurisdictional questions necessarily intertwined under the immunity- waiver statute at issue there.

2017The doctrine of immunity, which does not appear in our Constitution, has its origins in the common law and the feudal fiction that “the King can do no wrong.” Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015); see Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006); Hosner v. DeYoung, 1 Tex. 764, 769 (1847).

2012Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006) (describing the immunity as immunity from liability and immunity from suit).

2017The doctrine of immunity, which does not appear in our Constitution, has its origins in the common law and the feudal fiction that “the King can do no wrong.” Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015); see Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006); Hosner v. DeYoung, 1 Tex. 764, 769 (1847).

2016Thus, because the doctrine dictates that a sovereign may not be sued “without her consent,” Hosner, 1 Tex. at 769 , we generally defer to the sovereign will of the state — as expressed by “the people” — for any waiver of already existing immunity.

2009See Harkinson v. Trammell Crow Co. , 915 S.W.2d 28, 34 (Tex.App.--Dallas 1995, no writ).

1996See Harkinson v. Trammell Crow Co. , 915 S.W.2d 28, 34 (Tex.App.--Dallas 1995, no writ).

2008See, e.g. , Univ. of Houston v. Clark , 38 S.W.3d 578, 580 (Tex. 2000) ( A Official immunity is an affirmative defense that protects government employees from personal liability. @ ) (emphasis added).

2008See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000) (“Official immunity is an affirmative defense that protects government employees from personal liability.”) (emphasis added).

2000See Kassen , 887 S.W.2d at 9 .

2000See Kassen, 887 S.W.2d at 9 .

2023“The immunity inquiry ‘focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct.’” Id. (quoting Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018)) (emphasis in original).

2020The immunity inquiry “focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct.” Youngkin, 546 S.W.3d at 681 (emphasis in original).

2022Attorneys in Texas are protected from liability to non-clients by an immunity defense “stemming from the broad declaration over a century ago that ‘attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.’” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (quoting Kruegel v. Murphy, 126 S.W. 343 , 345 (Tex. App. 1910, writ ref’d)).

2022Fund, 631 S.W.3d 40 , 51 (Tex. 2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 482 (Tex. 2015). have held that the immunity inquiry focuses on the function and role the lawyer was performing, not the alleged wrongfulness, or even asserted criminality, of the lawyer’s conduct. 2 The nuance presented here is whether an exception exists for private-party civil suits asserting that a lawyer has engaged in conduct criminalized by statute.

2005Specifically, the immunity defense provides that “[government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.” Id. (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)).

2005Specifically, the immunity defense provides that "[g]overnment employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority." Id. (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)).

1999Kilburn, 849 S.W.2d at 812 .

1998City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993).

2026See Sampson, 500 S.W.3d at 38 .

2021See Sampson, 500 S.W.3d at 391 ; Payne, 838 S.W.2d at 237 .

2025Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015), or a claim brought against a state official for nondiscretionary acts unauthorized by law, Heinrich, 284 S.W.3d at 372 , Young must have pleaded facially valid claims to bypass the immunity bar.10 He did not do so.

2015"To fall within th[e] ultra vires exception [to the immunity doctrine], a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." Heinrich, 284 S.W.3d at 372 .

2016Suarez, 465 S.W.3d at 632 .

2015Suarez v. City of Texas City, No. 13-0947, 2015 WL 3802865, at *5 (Tex. June 19, 2015) (“The immunity waiver is therefore intertwined with the merits of a claim under the Act.”).

2010Comm’n v. Little-Tex Insulation Co. , 39 S.W.3d 591 , 598–99 (Tex. 2001) (reasoning that the immunity doctrine shielded the State from an invalid constitutional-takings claim).

2010Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598-99 (Tex.2001) (reasoning that the immunity doctrine shielded the State from an invalid constitutional-takings claim). *674 Cypress Forest supports its legal conclusion on the facts that (1) the right to annexation was contingent on the developers’ constructing the facilities; (2) the right to tax was contingent on ever-changing tax laws; (8) interference with a contract does not constitute a “taking” under Texas law; and (4) the rights allegedly appropriated were contract rights, not real property rights.

2025Lara, 625 S.W.3d at 52 (quoting Garcia, 372 S.W.3d at 635 ) (other citation omitted).

2021“Because a statutory violation is necessary to establish an immunity waiver [under the TCHRA], jurisdiction and the merits intertwine.” Alamo Heights, 544 S.W.3d at 783 (citing Garcia, 372 S.W.3d at 635–36).

2024Id.

2019Sovereign and Governmental Immunity Sovereign immunity has long been described as one of the “attributes of sovereignty.” 50 Unless waived, sovereign immunity protects the state and its agencies from lawsuits for damages. 51 In Texas, the immunity doctrine has two aspects: (1) immunity from suit even when the sovereign’s liability is not disputed and (2) immunity from liability even though the sovereign has consented to the suit. 52 Immunity from suit recognizes the judiciary’s limited authority over its sovereign creator and thus implicates the courts’ subject-matter jurisdiction to resolve a

2024However, the Act’s “election-of-remedies provision, section 101.106, effectively conditions the immunity waiver on the plaintiff’s forfeiture of any negligence claims against the employee in his individual capacity.” Molina, 463 S.W.3d at 870 .

2020Molina v. Alvarado, 463 S.W.3d 867, 870 (Tex. 2015); TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a).

2016Hughes relies on an immunity waiver theory applied by a plurality of the Supreme Court in Texas A&M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002).

2006The only authority appellant cites to support his claim is Texas A&M University–Kingsville v. Lawson , 28 S.W.3d 211, 214-215 (Tex. App.—Austin 2000), aff’d 87 S.W.3d 518 (Tex. 2002).

2005See, e.g., Gravel v. United States , 408 U.S. 606 , 615 B 16, 92 S. Ct. 2614 (1972) (holding that senator could not be made to answer questions about events that occurred in senate subcommittee meeting); Dombrowski v. Eastland , 387 U.S. 82, 85 , 87 S. Ct. 1425 (1967) (noting that legislators A should be protected not only from the consequences of litigation = s results but also from the burden of defending themselves @ ); Clear Lake City Water Auth. v. Salazar , 781 S.W.2d 347 , 349 B 50 (Tex. App. C Houston [14th Dist.] 1989, orig. proceeding) (holding that members of water authority could n

2003Perry , 60 S.W.3d at 860 ; Clear Lake , 781 S.W.2d at 349-50 .