waiver-by-conduct exception in Texas

2025“Creating a waiver-by-conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity's protections—and this would defeat many of the doctrine’s underlying policies.” Id.

2025See IT-Davy, 74 S.W.3d at 857 . 32 Trying to discern a rule of decision from IT-Davy and Catalina Development, some courts of appeals in the mid-2000s concluded that “courts are to evaluate the waiver-by-conduct exception on the facts and equity of each case.” Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 220 (Tex. App.— Houston [14th Dist.] 2008, pet. denied).

2025Appraisal Dist., 691 S.W.3d 890 , 907 (Tex. 2024) (“sovereign immunity must be waived by the Legislature rather than by a party's conduct”); Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011) (holding that allowing a waiver-by-conduct exception thwarts the 43 43565622v.7 43565622v.9 Legislature’s balance of competing private and public interests); Tex. A & M Univ.

2017Consistent with the Supreme Court's refusal to recognize a waiver-by-conduct exception, Sharyland Water Supply Corp. v. City of Alton , 354 S.W.3d 407 , 414 (Tex. 2011), several of our sister courts have held that promissory-estoppel claims fall outside the limited scope of waiver contained in Section 271.152 of the Local Government Code.

2025IT-Davy explains that in 2001, the Texas Supreme Court held that the Legislature’s new administrative remedy “foreclosed a waiver-by-conduct exception to sovereign immunity in breach-of-contract cases.” Id. (describing the holding of General Services Com’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 597 (Tex. 2001)).

2009Compare Federal Sign, 951 S.W.2d at 408 n. 1 (“There may be ... circumstances where the State may waive its immunity by conduct other than simply executing a contract so that it is not always immune from suit when it contracts.”), with IT-Davy, 74 S.W.3d at 857 (refusing to fashion “a waiver-by-conduct exception in a breach-of-contract suit against the State,” even where, as here, chapter 2260 is inapplicable).

2025“We refuse to intercede, in light of the Legislature’s enactment of Chapter 2260, by judicially adopting a waiver-by-conduct doctrine.” Id.

2025IT-Davy explains that in 2001, the Texas Supreme Court held that the Legislature’s new administrative remedy “foreclosed a waiver-by-conduct exception to sovereign immunity in breach-of-contract cases.” Id. (describing the holding of General Services Com’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 597 (Tex. 2001)).

2025Courts do not “evaluate the waiver-by-conduct exception to sovereign immunity on the facts of each case.” Cf. State Street, 212 S.W.3d at 907 .

2009In fact, the State Street court itself noted that “[t]he Texas Supreme Court has never addressed a waiver-by-conduct exception argument faced with the ‘extraordinary factual circumstances’ as the trial court described them here.” Id.

2009See Smith v. Lutz, 149 S.W.3d 752, 761 (Tex.App.-Austin 2004, no pet.) (“The waiver-by-conduct exception once recognized by this Court ... but rejected by the supreme court is not resurrected for those contracts that pre-date the effective date of the administrative remedies created in chapter 2260.”).

2009See Smith v. Lutz, 149 S.W.3d 752, 761 (Tex. App.—Austin 2004, no pet.) (“The waiver-by-conduct exception once recognized by this Court . . . but rejected by the supreme court is not resurrected for those contracts that pre-date the effective date of the administrative remedies created in chapter 2260.”).

2025Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Catalina Dev., Inc. v. Cnty. of El Paso, 121 S.W.3d 704 , 705–06 (Tex. 2003); IT-Davy, 74 S.W.3d at 857 (creating a waiver-by-conduct exception would defeat many of sovereign immunity’s underlying policies).

2022Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Catalina Dev., Inc. v. Cnty. of El Paso, 121 S.W.3d 704 , 705–06 (Tex. 2003); see also IT-Davy, 74 S.W.3d at 857 (“Creating a waiver-by-conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity’s protections—and this would defeat many of the doctrine’s underlying policies.”). 20 This Court, however, has recognized a waiver-by-conduct abrogation of a governmental entity’s immunity from suit.

2011See Employees Retirement Sys. v. Putnam, LLC., 294 S.W.3d 309, 327 (Tex. App.–Austin 2009, no pet.) (also recognizing the Supreme Court’s “rejection of the waiver-by-conduct doctrine since Federal Sign” in suits for breached contract).

2011See Employees Retirement Sys. v. Putnam, LLC., 294 S.W.3d 309, 327 (Tex. App.–Austin 2009, no pet.) (also recognizing the Supreme Court’s “rejection of the waiver-by-conduct doctrine since Federal Sign” in suits for breached contract).

2025Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Catalina Dev., Inc. v. Cnty. of El Paso, 121 S.W.3d 704 , 705–06 (Tex. 2003); IT-Davy, 74 S.W.3d at 857 (creating a waiver-by-conduct exception would defeat many of sovereign immunity’s underlying policies).

2022Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Catalina Dev., Inc. v. Cnty. of El Paso, 121 S.W.3d 704 , 705–06 (Tex. 2003); see also IT-Davy, 74 S.W.3d at 857 (“Creating a waiver-by-conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity’s protections—and this would defeat many of the doctrine’s underlying policies.”). 20 This Court, however, has recognized a waiver-by-conduct abrogation of a governmental entity’s immunity from suit.

2024Moreover, our Court has cautioned that since the Supreme Court decided Federal Sign, the Supreme Court has “declined repeated requests to recognize a ‘waiver by conduct,’ and has never gone further than its suggestion in Federal Sign that such a waiver might conceivably occur under some set of facts it has not yet seen.” City of New 391 S.W.3d 635, 640 (Tex. App.—Austin 2012, no pet.) (explaining that “trial court’s designation of items as findings of fact or conclusions of law is not controlling on appeal, and we may treat the court’s ruling as a factual finding or legal conclusion regardless

2015Recently, this Court discussed the waiver-by-conduct issue again and explained that if it “has any current viability, it has lived on within the rubric not of whether sovereign or governmental immunity has been waived, per se, but in the threshold determination of whether immunity applies in the first place.” City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.—Austin 2014, no pet.).

2012Employees Retirement Sys. of Tex. v. Putnam, 294 S.W.3d 309, 327 (Tex. App.—Austin 2009, no pet.); Smith v. Lutz, 149 S.W.3d 752, 761 (Tex. App.—Austin 2004, no pet.); see also Leach v. Texas Tech Univ., 335 S.W.3d 386, 401 (Tex. App.—Amarillo 2011, pet. denied) (declining to recognize waiver-by-conduct exception); but see Texas S. Univ. v. State St.

2012Employees Retirement Sys. of Tex. v. Putnam , 294 S.W.3d 309, 327 (Tex. App.--Austin 2009, no pet.); Smith v. Lutz , 149 S.W.3d 752, 761 (Tex. App.--Austin 2004, no pet.); see also Leach v. Texas Tech Univ. , 335 S.W.3d 386, 401 (Tex. App.--Amarillo 2011, pet. denied) (declining to recognize waiver-by-conduct exception); but see Texas S. Univ. v. State St.

2001See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex.1999) (indicating that the doctrine of legislative silence applies only when the statute is ambiguous).

2001See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex.1999) (indicating that the doctrine of legislative silence applies only when the statute is ambiguous).

2007Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854-58 (Tex.2002); Little-Tex., 39 S.W.3d at 594 . [3] IT-Davy, 74 S.W.3d at 857 ("Creating a waiver-by-conduct exception [to the sovereign immunity doctrine] would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity's protections — and this would defeat many of the doctrine's underlying policies."). [4] 87 S.W.3d 518 (Tex.2002). [5] Id. at 518 . [6] Id. at 518-19 . [7] Id. [8] Id. at 521 . [9] Maj.

2007IT-Davy, 74 S.W.3d at 857 ("Creating a waiver-by-conduct exception [to the sovereign immunity doctrine] would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity’s protections — and this would defeat many of the doctrine’s underlying policies.”). . 87 S.W.3d 518 (Tex.2002). .

2025Dist., 472 S.W.3d 462, 467 (Tex. App.— Dallas 2015 , no pet.) (“The supreme court and other appellate courts, including this Court, have consistently refused to recognize a waiver-by-conduct exception in breach of contract suits against governmental entities.”); Gentilello v. Univ. of Tex. Sw.

2018We “have consistently refused to recognize a waiver-by-conduct exception in breach of contract suits against governmental entities.” TXU Energy Retail Co., 472 S.W.3d at 467 .

2025Webber, L.L.C. v. Harris County Toll Road Auth., 324 S.W.3d 877, 883-84 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

2017Auth. , 324 S.W.3d 877 , 883 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (observing that Texas Supreme Court denied university's petition for review in State Street , "thereby declining *10 to confirm or deny the existence or scope of the waiver-by-conduct exception").

2025See IT-Davy, 74 S.W.3d at 857 . 32 Trying to discern a rule of decision from IT-Davy and Catalina Development, some courts of appeals in the mid-2000s concluded that “courts are to evaluate the waiver-by-conduct exception on the facts and equity of each case.” Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 220 (Tex. App.— Houston [14th Dist.] 2008, pet. denied).

2025In Jefferson County v. Stines, this Court recognized the Supreme Court’s rejection of a waiver-by-conduct exception, and noted that “‘at least one intermediate appellate court ha[d] concluded that a governmental entity may waive its immunity from suit by its conduct in “extraordinary factual circumstances.’” 523 S.W.3d 691, 724-25 (Tex. App.—Beaumont 2017, rev’d in part and vacated in part on other grounds, 550 S.W.3d 178 (2018) (citing Tex. S. Univ. v. State St.

2024Moreover, our Court has cautioned that since the Supreme Court decided Federal Sign, the Supreme Court has “declined repeated requests to recognize a ‘waiver by conduct,’ and has never gone further than its suggestion in Federal Sign that such a waiver might conceivably occur under some set of facts it has not yet seen.” City of New 391 S.W.3d 635, 640 (Tex. App.—Austin 2012, no pet.) (explaining that “trial court’s designation of items as findings of fact or conclusions of law is not controlling on appeal, and we may treat the court’s ruling as a factual finding or legal conclusion regardless

2024See, e.g., City of San Saba v. Higginbotham, No. 03-17-00408-CV, 2018 WL 2016463 , at *3 n.2 (Tex. App.—Austin May 1, 2018, no pet.) (mem. op.) (“[T]his Court has previously declined to recognize such ‘waiver by conduct,’ and we decline to do so now.”); Hughes v. Tom Green County, 553 S.W.3d 1, 10 (Tex. App.—Austin 2017), rev’d on other grounds, 573 S.W.3d 212 (Tex. 2019) (“On the facts before us and in the absence of guidance from the Texas Supreme Court as to what actions might justify waiver by conduct, we decline to apply the ‘waiver-by-conduct’ exception to governmental immunity to the co

2024See, e.g., City of San Saba v. Higginbotham, No. 03-17-00408-CV, 2018 WL 2016463 , at *3 n.2 (Tex. App.—Austin May 1, 2018, no pet.) (mem. op.) (“[T]his Court has previously declined to recognize such ‘waiver by conduct,’ and we decline to do so now.”); Hughes v. Tom Green County, 553 S.W.3d 1, 10 (Tex. App.—Austin 2017), rev’d on other grounds, 573 S.W.3d 212 (Tex. 2019) (“On the facts before us and in the absence of guidance from the Texas Supreme Court as to what actions might justify waiver by conduct, we decline to apply the ‘waiver-by-conduct’ exception to governmental immunity to the co

2017Sheriff's Dep’t v. Smith, 290 S.W.3d 550, 554 (Tex. App.—Beaumont 2009, no pet.) (noting that the Texas Supreme Court has declined to create a waiver-by-conduct exception to the sovereign immunity rule and refusing to apply such an exception in a tort suit involving claims for negligence, gross negligence, and intentional infliction of emotional distress); City of Roman Forest v. Stockman, 141 S.W.3d 805, 813 (Tex. App.—Beaumont 2004, no pet.) (explaining that “[ijmmunity from suit is not waived merely by accepting some of the benefits of a contract” and rejecting request to apply waiver-by-co

2017See, e.g. , Gay v. City of Wichita Falls , 457 S.W.3d 499 , 507 (Tex. App.-El Paso 2014, no pet.) ; City of Deer Park v. Ibarra , No. 01-10-00490-CV, 2011 WL 3820798 , at *6-7 (Tex. App.-Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.); Somerset Indep.

2017Sheriff's Dep’t v. Smith, 290 S.W.3d 550, 554 (Tex. App.—Beaumont 2009, no pet.) (noting that the Texas Supreme Court has declined to create a waiver-by-conduct exception to the sovereign immunity rule and refusing to apply such an exception in a tort suit involving claims for negligence, gross negligence, and intentional infliction of emotional distress); City of Roman Forest v. Stockman, 141 S.W.3d 805, 813 (Tex. App.—Beaumont 2004, no pet.) (explaining that “[ijmmunity from suit is not waived merely by accepting some of the benefits of a contract” and rejecting request to apply waiver-by-co

2017See City of Conroe v. TPProperty LLC, 480 S.W.3d 545, 564-65 (Tex. App.—Beaumont 2015, no pet.) (refusing to apply waiver-by-conduct exception to breach of contract claims); Hardin Cty.

2010Dist. v. Gracia, 286 S.W.3d 392, 395 (Tex. App.—Corpus Christi 2008, no pet.) (“The Texas Supreme Court…has forestalled the waiver-by-conduct exception to sovereign immunity in situations where an administrative remedy is available.”).