waiver of sovereign immunity in Texas

2022See generally id. at 333 (recognizing that a “waiver of immunity must be clear and unambiguous”); see also TEX.GOV’T CODE ANN. § 311.034 (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”). 13 facilities, targeted infrastructure, and improvements that are . . . for the creation or retention of primary jobs . . .” Id. § 501.101; § 501.151-153.

2020See Tex. Gov’t Code Ann. 3 § 311.034 (West, Westlaw through 2019 R.S.) (providing that a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language); Tooke v. City of Mexia, 197 S.W.3d 325 , 332–33 (Tex. 2006).

2026Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006). 6 Our analysis begins with an acknowledgment that “the State derives its authority from ‘the people.’”11 “[T]o waive immunity, consent to suit must ordinarily be found in a constitutional provision or legislative enactment.”12 “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”13 The Legislature may simply state that “sovereign immunity is waived” for a particular claim,14 but when it does not, the rule “cannot be applied so rigidly that the almost certa

2020See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003) (“It is settled in Texas that for the Legislature to waive the State’s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature’s waiver of immunity.”); see also Tex. Gov’t Code § 311.034 (“In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).

2015Lee, 38 S.W.3d at 870–71; accord Barfield, 898 S.W.2d at 295 ; Duhart, 610 S.W.2d at 742 . 8 See, e.g., Beaumont State Ctr. v. Kozlowski, 70 S.W.3d 345, 349 (Tex.App.-Beaumont 2002, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Cent.

2015Lee, 38 S.W.3d at 870–71; accord Barfield, 898 S.W.2d at 295 ; Duhart, 610 S.W.2d at 742 . 8 See, e.g., Beaumont State Ctr. v. Kozlowski, 70 S.W.3d 345, 349 (Tex.App.-Beaumont 2002, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Cent.

2015Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001).

2015Miller, 51 S.W.3d at 588 ; Bossley, 968 S.W.2d at 342 43; King, 329 S.W.3d at 882 ; Kamel, 333 S.W.3d at 686 ; Ward, 280 S.W.3d at 356 ; Ruggeri, 2014 WL 4345165 , at *4.

2023Furthermore, under Section 311.004 of the Texas Government Code, a statute should not be construed as a waiver of sovereign immunity unless the waiver is signaled by “clear and unambiguous language.” See IT–Davy, 74 S.W.3d at 854 .

2020GOV’T CODE ANN. § 311.034 (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”); IT–Davy, 74 S.W.3d at 854 .

2025They accordingly “failed to raise a fact question regarding … alleged gross negli- gence” and thus “f[e]ll short of satisfying the requirements for the Legislature’s lim- ited grant of a waiver of sovereign immunity from suit under the applicable statutes.” Id.

2023“Immunity from suit implicates a court’s subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction.” Nettles, 606 S.W.3d at 731; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 , 225–26 (Tex. 2004). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” TEX.

2013These statutory features also demonstrate that Bacon can avail himself of neither the waiver of sovereign immunity in APA section 2001.171 (again, no contested case), nor the ultra-vires exception — he has not complained of any THC conduct that would exceed its statutory authority, see Heinrich, 284 S.W.3d at 372 (to come within ultra-vires exception, plaintiff “must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act”).

2013Our third reason, related to the first, is that if there is an underlying justiciable controversy regarding construction of statutes that could provide a jurisdictional basis for the UDJA claims Giggleman purports to assert, see Heinrich, 284 S.W.3d at 370-71 ; Creedmoor-Maha, 307 S.W.3d at 515 , it must exist solely by virtue of the waiver of sovereign immunity contained in PIA section 552.321.

2025While noting the two (2) fundamental requirements for a waiver of sovereign immunity, the Texas Supreme Court in Lueck also noted that the mere reference to the Whistleblower Act alone is insufficient to confer jurisdiction and that the elements of a violation of the Whistleblower Act must be pled. 12 The Whistleblower Act provides, in part: (a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing 10 State v. Lueck, 290 S.W.3d 876, 881

2017See State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 , 694 n.3 (Tex. 2003); see also Tex. Gov’t Code Ann. § 311.034 (West 2013) (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).

2019Id. at 685 ; id. at 685 (Cornyn, J., dissenting) (“The result [of the plurality opinion] is that no opinion speaks for the court.”). 22 See id. at 688–689 (Cornyn, J., dissenting). 23 871 S.W.2d 175, 176 (Tex. 1994). 24 Id. at 176–177. 25 Id. at 177 (citing Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980)). 26 Id. at 179. 9 who was not provided a knee brace, the epileptic swimmer who was not provided a life preserver, and the undiagnosed heart attack, stating that each was limited to its facts.27 C York’s precept—that a waiver of sovereign immunity must be by clear and unambiguous language—has

2019Id. at 685 ; id. at 685 (Cornyn, J., dissenting) (“The result [of the plurality opinion] is that no opinion speaks for the court.”). 22 See id. at 688–689 (Cornyn, J., dissenting). 23 871 S.W.2d 175, 176 (Tex. 1994). 24 Id. at 176–177. 25 Id. at 177 (citing Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980)). 26 Id. at 179. 9 who was not provided a knee brace, the epileptic swimmer who was not provided a life preserver, and the undiagnosed heart attack, stating that each was limited to its facts.27 C York’s precept—that a waiver of sovereign immunity must be by clear and unambiguous language—has

2009When determining whether the legislature intended to waive sovereign immunity through a statute, we are bound to comply with the legislature’s mandate that “a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (West Supp.2008); see State v. Oakley, 227 S.W.3d 58, 62 (Tex.2007).

2009When determining whether the legislature intended to waive sovereign immunity through a statute, we are bound to comply with the legislature’s mandate that “a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (West Supp. 2008); see State v. Oakley, 227 S.W.3d 58, 62 (Tex. 2007).

2019Id. at 685 ; id. at 685 (Cornyn, J., dissenting) (“The result [of the plurality opinion] is that no opinion speaks for the court.”). 22 See id. at 688–689 (Cornyn, J., dissenting). 23 871 S.W.2d 175, 176 (Tex. 1994). 24 Id. at 176–177. 25 Id. at 177 (citing Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980)). 26 Id. at 179. 9 who was not provided a knee brace, the epileptic swimmer who was not provided a life preserver, and the undiagnosed heart attack, stating that each was limited to its facts.27 C York’s precept—that a waiver of sovereign immunity must be by clear and unambiguous language—has

2015Lee, 38 S.W.3d at 870–71; accord Barfield, 898 S.W.2d at 295 ; Duhart, 610 S.W.2d at 742 . 8 See, e.g., Beaumont State Ctr. v. Kozlowski, 70 S.W.3d 345, 349 (Tex.App.-Beaumont 2002, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Cent.

2024Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011); Hopkins, 736 S.W.2d at 619 . 8 “a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” 14 We apply a de novo standard to appeals from rulings on pleas to the jurisdiction. 15 Here, the question of whether the trial court possessed subject-matter jurisdiction over Osuna’s Chapter 451 retaliation claim was decided based on her pleadings.

2015Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011); Reata Const. Corp., 197 S.W.3d at 375 . 2 doctrine of sovereign immunity, even if there is no statute establishing the waiver or exception.8 Thus, for there to be a waiver of sovereign immunity from suit, in most casesthe Legislature must have waived immunity from suit as to the claim in question.9 Both at common law and by statute, for a statute to provide a waiver of sovereign immunity, the waiver must be effected by clear and unambiguous statutory language.10 Under the Texas Declaratory Judgments Act, the Legislature provides that “[

2015Miranda, 133 S.W.3d at 226 ; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

2015Miranda, 133 S.W.3d at 226 ; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

2023In suits against the government, plaintiffs bear the concomitant burden of establishing a waiver of sovereign immunity.5 Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

2010STANDARD OF REVIEW Absent a waiver of sovereign immunity, a state entity cannot be sued. 2 See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam).

2008Supreme Court Decisions The Texas Tort Claims Act was enacted in 1969 to become effective January 1, 1970. 9 The Court decided in Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976), that the plaintiffs allegations pertaining to the failure to use available tangible personal property (protective equipment) were sufficient to invoke the waiver of sovereign immunity provisions of the Act and reversed the Court of Civil Appeals, which had affirmed the trial court’s order sustaining pleas to the jurisdiction.

2008Supreme Court Decisions The Texas Tort Claims Act was enacted in 1969 to become effective January 1, 1970. (footnote: 9) The Court decided in Lowe v. Texas Tech University , 540 S.W.2d 297 (Tex. 1976), that the plaintiff’s allegations pertaining to the failure to use available tangible personal property (protective equipment) were sufficient to invoke the waiver of sovereign immunity provisions of the Act and reversed the Court of Civil Appeals, which had affirmed the trial court’s order sustaining pleas to the jurisdiction.

2015It concluded that it “would serve no legislative purpose to declare a waiver of sovereign immunity when the basis of liability is respondeat superior and the acts of the employee are covered by official immunity.” Id.

2003See DeWitt v. Harris County , 904 S.W.2d 650, 654 (Tex. 1995) ("It would serve no legislative purpose to declare a waiver of sovereign immunity when the basis of liability is respondeat superior and the acts of the employee are covered by official immunity.").

2022Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (recognizing that “intentional rather than negligent acts . . . do not fall within the waiver of sovereign immunity”).

2005But these too are intentional rather than negligent acts, and thus do not fall within the waiver of sovereign immunity. 44 S.W.3d at 580 . 4 .

2015Nueces County v. Ferguson, 91 S.W.3d 205 , 217 (Tex. App.-Corpus Christi 2002, no pet)(citing Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980)).

2008See Steele , 603 S.W.2d at 791–92; Villarreal , 226 S.W.3d at 542 .

2015Miller, 51 S.W.3d at 588 ; Bossley, 968 S.W.2d at 342 43; King, 329 S.W.3d at 882 ; Kamel, 333 S.W.3d at 686 ; Ward, 280 S.W.3d at 356 ; Ruggeri, 2014 WL 4345165 , at *4.

2001Bossley, 968 S.W.2d at 341-42 (discussing the history of the passage of the Act); City of LaPorte v. Barfield, 898 S.W.2d 288, 299 (Tex.1995) (“[0]nly causes of action and remedies authorized by the Texas Tort Claims Act are permitted.”).

2023City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” TEX.

2012City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” TEX.

2009Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). 4 A plaintiff must plead facts sufficient to invoke a waiver of sovereign immunity under the Texas Tort Claims Act.

2009See Payne, 838 S.W.2d at 237 .

2026Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006). 6 Our analysis begins with an acknowledgment that “the State derives its authority from ‘the people.’”11 “[T]o waive immunity, consent to suit must ordinarily be found in a constitutional provision or legislative enactment.”12 “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”13 The Legislature may simply state that “sovereign immunity is waived” for a particular claim,14 but when it does not, the rule “cannot be applied so rigidly that the almost certa

2016Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006)); see also Tex. Gov’t Code Ann. § 311.034 (West 2013) (a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language).

2013Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 248 (Tex. 2002); Tex. Gov’t Code Ann. § 311.034 (West Supp. 2012) (providing “a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language”).

2013Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 248 (Tex. 2002); Tex. Gov't Code Ann. § 311.034 (West Supp. 2012) (providing "a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language").

2004See Kassen v. Hatley , 887 S.W.2d 4, 11 (Tex. 1994) (stating that the non-use of property, such as available drugs during emergency medical treatment, does not result in the waiver of sovereign immunity).

2004See Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994) (stating that the non-use of property, such as available drugs during emergency medical treatment, does not result in the waiver of sovereign immunity).

2004As to the Shumakes' nuisance claim, although the tort claims act does not provide a waiver of sovereign immunity for nuisance claims, "[g]overnmental entities may be liable for nuisances created or maintained in the course of non-negligent [grossly negligent] performance of governmental functions." Texas Dept. of Transp. v. City of Sunset Valley, 92 S.W.3d 540 (Tex.App.-Austin 2002, no pet.) (citing *73 Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex.App.-Beaumont 1998, no pet.)).

2003As to the Shumakes’ nuisance claim, although the tort claims act does not provide a waiver of sovereign immunity for nuisance claims, “[g]overnmental entities may be liable for nuisances created or maintained in the course of non-negligent [grossly negligent] performance of governmental functions.” Texas Dept. of Transp. v. City of Sunset Valley, 92 S.W.3d 540 (Tex.App.-Austin 2002, no pet.) (citing *73 Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex.App.-Beaumont 1998, no pet.)).

2015Counties Ctr. for Mental Health & Mental Retardation Servs. v. Rodriguez, 45 S.W.3d 707, 713 (Tex.App.-Austin 2001, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Spindletop MHMR v. Doe, 54 S.W.3d 893, 897 (Tex.App.-Beaumont 2001, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 871 (Tex.App.-Fort Worth 2001, pet. filed) (holding that section 321.003(b) is not a clear and unambiguous waiver of immunity).

2015Counties Ctr. for Mental Health & Mental Retardation Servs. v. Rodriguez, 45 S.W.3d 707, 713 (Tex.App.-Austin 2001, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Spindletop MHMR v. Doe, 54 S.W.3d 893, 897 (Tex.App.-Beaumont 2001, pet. filed) (holding that section 321.003(b) is a waiver of sovereign immunity); Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 871 (Tex.App.-Fort Worth 2001, pet. filed) (holding that section 321.003(b) is not a clear and unambiguous waiver of immunity).

2016The supreme court has “repeatedly affirmed that any purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity.” Chatha, 381 S.W.3d at 513 (citing Taylor, 106 S.W.3d at 696 ); see also Tex. Gov’t Code Ann, § 311.034 (Vernon 2013) (“In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).

2015The Supreme Court has “repeatedly affirmed that any purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012); see Tex. Gov’t Code Ann. § 311.034 (“In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).