intent to waive immunity in Texas

2015And because immunity waivers are strictly construed in favor of the governmental entity, the Legislature’s intent to waive immunity must be “unmistakable.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 701 (Tex. 2003) (courts construe ambiguities in manner that retains State's immunity). 15 A governmental entity’s immunity from suit for breach of contract extends to suits seeking specific performance.

2011Id. “[W]e have little difficulty recognizing the Legislature’s intent to waive immunity from suit when a statute provides that ... ‘sovereign immunity to suit is waived.’ ” *218 Id. at 696-97 (citations omitted). 8 This ease, however, presents no such explicit language waiving immunity from suit.

2025Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous.”)(emphasis added).

2025Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous.”)(emphasis added).

2015Lower courts have split on whether section 571.003(12)’s definition, read in conjunction with section 321.003(b), is a “clear and unambiguous” statement of the Legislature’s intent to waive sovereign immunity.8 In refusing to find a waiver of sovereign immunity, one court of appeals noted that, although the statute authorizes actions against private facilities licensed by state health care regulatory agencies, it does not “clearly express an intent to waive immunity by authorizing actions against governmental entities.” Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 87

2015Lower courts have split on whether section 571.003(12)’s definition, read in conjunction with section 321.003(b), is a “clear and unambiguous” statement of the Legislature’s intent to waive sovereign immunity.8 In refusing to find a waiver of sovereign immunity, one court of appeals noted that, although the statute authorizes actions against private facilities licensed by state health care regulatory agencies, it does not “clearly express an intent to waive immunity by authorizing actions against governmental entities.” Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 87

2012See Fernandez, 28 S.W.3d at 14 (citing Duhart v. State, 610 S.W.2d 740, 742-43 (Tex. 1980)).

2012Id. at 296 (discussing Duhart v. State, 610 S.W.2d 740 (Tex.1980)); see also Norman, 342 S.W.3d at 58 (“We concluded in Barfield that this incorporation was, without more, an insufficient expression of the government’s intent to waive immunity.”).

2012See Barfield, 898 S.W.2d at 295 .

2012Id. at 296 (discussing Duhart v. State, 610 S.W.2d 740 (Tex.1980)); see also Norman, 342 S.W.3d at 58 (“We concluded in Barfield that this incorporation was, without more, an insufficient expression of the government’s intent to waive immunity.”).

2012See Fernandez, 28 S.W.3d at 14 (citing Duhart v. State, 610 S.W.2d 740, 742-43 (Tex. 1980)).

2012See Fernandez , 28 S.W.3d at 14 (citing Duhart v. State , 610 S.W.2d 740, 742-43 (Tex. 1980)).

2006See id . at 696-97 n.5 (addressing the waiver of immunity from liability), n.6 (addressing the waiver of immunity from suit); see also City of New Braunfels v. Allen , 132 S.W.3d 157 , 164 n.11 (Tex. App.--Austin 2004, no pet.) ("We believe the first sentence of section 554.0035 . . . clearly waive[s] immunity from suit , while the second sentence of section 554.0035, by its terms, waives immunity from liability .") (emphasis in original).

2006See id. at 696-97 n. 5 (addressing the waiver of immunity from liability), n. 6 (addressing the waiver of immunity from suit); see also City of New Braunfels v. Allen, 132 S.W.3d 157 , 164 n. 11 (Tex.App.-Austin 2004, no pet.) (‘We believe the first sentence of section 554.0035 ... clearly waive[s] immunity from suit, while the second sentence of section 554.0035, by its terms, waives immunity from liability.”) (emphasis in original).

2005We recognize that "[e]ven if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional." Helena Chemical Co. v. Wilkins , 47 S.W.3d 486, 494 (Tex. 2001)(construing a statute that required purchasers of agricultural seeds to submit disputes to arbitration as a prerequisite to exercising its right to maintain a legal action); Dubai Petroleum Co. v. Kazi , 12 S.W.3d 71 (Tex. 2000)(construing a statute permitting suits for personal injury or wrongful death of a citizen of a foreign country in Texas courts if the injured party's country has "equal treaty

2005We recognize that “[e]ven if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional.” Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex.2001)(construing a statute that required purchasers of agricultural seeds to submit disputes to arbitration as a prerequisite to exercising its right to maintain a legal action); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000)(construing a statute permitting suits for personal injury or wrongful death of a citizen of a foreign country in Texas courts if the injured party’s country has “equal treaty rig

2012Id. at 57 .

2012Id. at 296 (discussing Duhart v. State, 610 S.W.2d 740 (Tex.1980)); see also Norman, 342 S.W.3d at 58 (“We concluded in Barfield that this incorporation was, without more, an insufficient expression of the government’s intent to waive immunity.”).

2016A waiver of governmental immunity by the Texas Legislature may be by statute but the Legislature's intent to waive immunity must be expressed in “clear and unambiguous language.” Bacon v. Texas Historical Comm'n, 411 S.W.3d 161, 173 (Tex. App.—Austin 2013, no pet.) The Texas Tort Claims Act (“TTCA”), codified in Chapter 101 of the Texas Civil Practice & Remedies Code, establishes a limited waiver of governmental immunity and authorizes suits to be brought against governmental units in certain narrowly-defined circumstances.

2013See Exxon Corp., 348 S.W.3d at 215 .

2013See Garcia, 253 S.W.3d at 655 (citing Tex. Gov’t Code Ann. § 311.034 (West Supp.2012)); City of Houston v. Vallejo, 371 S.W.3d 499, 502 (Tex.App.-Houston [1st Dist.] 2012, pet. filed); City of Houston v. Hildebrandt, 265 S.W.3d 22, 25 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). 1.

2013See Garcia, 253 S.W.3d at 655 (citing Tex. Gov’t Code Ann. § 311.034 (West Supp.2012)); City of Houston v. Vallejo, 371 S.W.3d 499, 502 (Tex.App.-Houston [1st Dist.] 2012, pet. filed); City of Houston v. Hildebrandt, 265 S.W.3d 22, 25 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). 1.

2010See Tooke, 197 S.W.3d at 342 (holding that a ten-word sentence that revealed nothing about an intent to waive immunity did not waive City’s immunity from suit). 51 .

2010Id. (holding that phrases in Texas statutes stating a governmental entity may "sue and be sued” or "plead and be impleaded” were not clear and unambiguous waivers of sovereign immunity within the meaning of Tex. Gov’t Code § 311.034); see also id. at 347-55 ("Appendix” listing Texas statutes containing "sue and be sued” or "plead and be implead-ed” language).

2009Muller Co. , 949 S.W.2d 39,42 (Tex.App.-San Antonio 1997, no pet.) (explaining that the granting or denial of a building permit is a governmental function). 4 See Taylor , 106 S.W.3d at 696-98 (setting out examples of statutory language that leave a court with little or no doubt as to the Legislature's intent to waive immunity). *Page 1

2006See City of Houston v. Boyer, Inc., 197 S.W.3d 393, 393 (Tex.2006) (Neither Local Government Code Section 51.075 nor city charter provision authorizing it to “sue and be sued, ... contract and be contracted with, implead and be impleaded in all courts and places and in all matters whatever” contains a clear and unambiguous waiver of immunity from suit.).

2003Dist. v. Henry, 52 S.W.3d 434, 448 (Tex.App.-Fort Worth 2001, no pet.); accord Taylor, 106 S.W.3d at 696-97 (“we have little difficulty recognizing the Legislature’s intent to waive immunity from suit when a statute provides that a state entity may be sued ”) (emphasis added); but cf. Jackson v. City of Galveston, 837 S.W.2d 868 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (statute which provides that Type A general-law municipality “may sue and be sued” does not waive immunity from suit); Townsend v. Memorial Med.

2003Ctr., 529 S.W.2d 264, 267 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n.r.e.) (statute permitting hospital authority to “sue and be sued” does not waive immunity from suit).