waiver of governmental immunity in Texas

2026We held that under these circumstances, the Takings Clause “itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.” Id. at 791 .

2026Code § 21.011. 20 See City of Dallas v. Stewart, 361 S.W.3d 562 , 567–68 (Tex. 2012) (summarizing the history of our eminent domain and inverse condemnation jurisprudence). 21 603 S.W.2d 786, 791 (Tex. 1980). 8 property via eminent domain and fails to pay adequate compensation.22 We reasoned that “[t]he Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”23 From Steele onward, our Court has acknowledged that “the Takings Clause is self-executing—tha

2011She relies on the supreme court’s decision in City of La Porte v. Barfield, in which the court held that “[t]he rule requiring a waiver of governmental immunity to be clear and unambiguous cannot be applied so rigidly that the almost certain intent of the Legislature is disregarded.” 898 S.W.2d 288, 292 (Tex.1995).

2011She relies on the supreme court’s decision in City of La Porte v. Barfield , in which the court held that “[t]he rule requiring a waiver of governmental immunity to be clear and unambiguous cannot be applied so rigidly that the almost certain intent of the Legislature is disregarded.” 898 S.W.2d 288, 292 (Tex. 1995).

2011El Paso County filed a plea to the jurisdiction, in which it argued that Scott had failed to show a waiver of governmental immunity from suit.2 See Texas Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (summarizing law of governmental immunity).

2011El Paso County filed a plea to the jurisdiction, in which it argued that Scott had failed to show a waiver of governmental immunity from suit. (2) See Texas Dept. of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999) (summarizing law of governmental immunity).

1993Since the Tort Claims Act was passed in 1969, we have repeatedly held that "the waiver of governmental immunity is a matter addressed to the Legislature." Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); accord, State Dept. of Highways & Public Transp. v. Dopyera, 834 S.W.2d 50, 54 (Tex. 1992) ("Texas is immune from tort liability except as waived under the Tort Claims Act"); LeLeaux v. Hamshire-Fannett Indep.

1993Since the Tort Claims Act was passed in 1969, we have repeatedly held that “the waiver of governmental immunity is a matter addressed to the Legislature.” Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); accord, State Dept. of Highways & Public Transp. v. Dopyera, 834 S.W.2d 50, 54 (Tex.1992) (“Texas is immune from tort liability except as waived under the Tort Claims Act”); LeLeaux v. Hamshire-Fannett Indep.

2019State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979); Golden Harvest, 942 S.W.2d at 687 .

2002State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979).

2015Id.; see also Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 149 (Tex.App.–Austin 1998, no writ) (“When the state or its agency takes, damages, or destroys public property for public use, ‘the Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity ...’ Thus, if Callaway alleged a valid claim for inverse condemnation ..., sovereign immunity does not bar the claim.”).

2015Id.; see also Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 149 (Tex.App.–Austin 1998, no writ) (“When the state or its agency takes, damages, or destroys public property for public use, ‘the Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity ...’ Thus, if Callaway alleged a valid claim for inverse condemnation ..., sovereign immunity does not bar the claim.”).

2015Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598-99 (Tex. 2001)(noting that governmental immunity “does not shield the State from an action for compensation under the takings clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980)(“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”).

2015Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598-99 (Tex.2001)(noting that governmental immunity “does not shield the State from an action for compensation under the takings clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.l980)(“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”).

2025See Sanchez, 494 S.W.3d at 725 (“To determine whether dismissal under rule 91a is required in this case, we thus consider whether the pleadings, liberally construed, allege sufficient facts to invoke a waiver of governmental immunity under the [TTCA].”); Reaves, 518 S.W.3d at 606-07 (“We are of the opinion that this case must therefore be judged under the constraints of rule 91a, since that is the procedural framework which the City’s motion invoked, upon which the appellants relied, and by which the trial court decided this case.”).

2024See City of Dallas v. Sanchez, 494 S.W.3d 722, 725 (Tex. 2016) (per curiam) (“To determine whether dismissal under Rule 91a is required in this case, we thus consider whether the pleadings, liberally construed, allege sufficient facts to invoke a waiver of governmental immunity under the Tort Claims Act.”); see also San Jacinto River Auth. v. Medina, 627 S.W.3d 618 , 621, 628– 29 (Tex. 2021(addressing merits of appeal from trial court’s denial of governmental entity’s Rule 91a motion asserting governmental immunity).

2025DART, 104 S.W.3d at 542 . 7 Because a waiver of governmental immunity “may hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments rather than using those resources for their intended purposes,” the Texas Supreme Court has instructed that such waivers must be “clearly and unambiguously stated.” Reata Constr.

2016Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

2025Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006); see TEX.

2025Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006); see TEX.

2018See Brown, 80 S.W.3d at 554 ; Contreras, 2016 WL 358612 , at *3–4. 2.

2009County of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002); Univ. of N. Tex. , 124 S.W.3d at 222 .

2010See Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 806 (Tex.App.Fort Worth 2008, no pet.) (finding it unnecessary to determine whether pleadings were insufficient to establish waiver of immunity because evidence added “necessary factual specifics”).

2009See Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 806 (Tex.App.–Fort Worth 2008, no pet.) (finding it unnecessary to determine whether pleadings were insufficient to establish waiver of immunity because evidence added “necessary factual specifics”).

2009See City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 12 (Tex. App–Houston [1st Dist.] 2007, no pet.); see also McMahon Contr., L.P. v. City of Carrollton, No. 05-07-01626-CV, 2009 Tex. App. LEXIS 311 , at *9 (Tex. App–Dallas Jan. 19, 2009, no pet. h.) (noting that the parties agreed that section 271.152 does not waive immunity from suit for quantum meruit claims); see also H & H Sand & Gravel, Inc. v. City of Corpus Christi, No. 13-06-00677-CV, 2007 Tex. App. LEXIS 8878 , at *7 (Tex. App.–Corpus Christi Nov. 8, 2007, pet. denied) (memo. op.) (holding that claims in equity, including

2009See *317 City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 12 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see also McMahon Contn, L.P. v. City of Carrollton, 277 S.W.3d 458, 463 (Tex.App.-Dallas 2009, no pet. h.) (noting that the parties agreed that section 271.152 does not waive immunity from suit for quantum meruit claims); see also H & H Sand & Gravel, Inc. v. City of Corpus Christi, No. 13-06-00677-CV, 2007 WL 3293628 , at *3, 2007 Tex.App.

2020In determining whether dismissal under Rule 91a is required in this case, “we thus 5 consider whether the pleadings, liberally construed, allege sufficient facts to invoke a waiver of governmental immunity under the Tort Claims Act.” Id. (citing Miranda, 133 S.W.3d at 226 ).

2015As previously stated, Miranda concerned a waiver of governmental immunity under the Texas Tort Claim Act, not the Declaratory Judgments Act. 133 S.W.3d at 224 .

2019City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980).

1981The Court in Duhart specifically stated: “... the waiver of governmental immunity is a matter addressed to the Legislature. (citations omitted) Thus, the State is immune unless the Legislature has consented to such suits.” Duhart v. State, supra at 741 .

2015GOV’T CODE ANN. §311.034 (Vernon Supp. 2007)(“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 governmental immunity unless the waiver is effected by clear and unambiguous language.”); Kirby Lake Dev., Ltd., 320 S.W.3d at 837 ; Tooke, 197 S.W.3d at 328-29 ; Wichita Falls State Hosp., 106 S.W.3d at 697 .

2015It is the need for certainty that has led courts in Texas to long recognize that a waiver of governmental immunity “must be clear and unambiguous.” Tooke v. City of Mexia, 197 S.W.3d 325, 333, n.2 (Tex. 2006) (TEX.

2016Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.2002) ("We have consistently deferred to the Legislature to waive sovereign' immunity from suit, because this allows the Legislature to protect its policymaking function."); Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex. 1993) ("Since the Tort Claims Act was passed in 1969, we have repeatedly held that the waiver of governmental immunity is a matter addressed to the Legislature.") (internal quotation marks omitted). . 43 Tex. Admin.

2004Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002) (emphasis added); see also Barfield, 898 S.W.2d at 291 ("The waiver of governmental immunity is a matter addressed to the Legislature.").

2013See State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) (“[Sjovereign immunity does not shield the State from a claim based upon a taking under Article I, section 17 of the Texas Constitution, known as the “takings clause.”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”).

2013See State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (“[S]overeign immunity does not shield the State from a claim based upon a taking under Article I, section 17 of the Texas Constitution, known as the “takings clause.”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”).

2025CODE § 51.014(a)(8). cities, are entitled to such immunity—referred to as governmental immunity—unless it has been waived. 1 See Rejecting each of Reata's asserted bases for a waiver of governmental immunity, the court of appeals reversed and Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 , 694 n. 3 (Tex.2003).

2015GOV’T CODE ANN. §311.034 (Vernon Supp. 2007)(“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 governmental immunity unless the waiver is effected by clear and unambiguous language.”); Kirby Lake Dev., Ltd., 320 S.W.3d at 837 ; Tooke, 197 S.W.3d at 328-29 ; Wichita Falls State Hosp., 106 S.W.3d at 697 .

2026But as judges, we are bound by the maxim that “the waiver of governmental immunity is a matter addressed to the Legislature, not the courts.” Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex. App.—San Antonio 2002, no pet.).

2025We note, moreover, that “the waiver of governmental immunity is a matter addressed to the Legislature, not the courts.” Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex. App.—San Antonio 2002, no pet.); see also Fortis Benefits, 234 S.W.3d at 649 (“It is indeed difficult to declare something contrary to public policy when state law . . . actually suggests approval.”). 5 In its reply brief, TMD argues that section 101.054’s language applies to “‘the activities of the state military forces’” as a whole, rather than to “the individual service member’s assignment.” Because both our analysis and the broad

2025This is because the UDJA does not 6 CONCLUSION We affirm the district court’s order. __________________________________________ Darlene Byrne, Chief Justice Before Chief Justice Byrne, Justices Kelly and Theofanis Affirmed Filed: January 30, 2025 enlarge a trial court’s jurisdiction and is not a waiver of governmental immunity; it is “merely a procedural device for deciding cases already within a court’s jurisdiction.” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011) (per curiam); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see Sefzik, 355

2025This is because the UDJA does not 6 CONCLUSION We affirm the district court’s order. __________________________________________ Darlene Byrne, Chief Justice Before Chief Justice Byrne, Justices Kelly and Theofanis Affirmed Filed: January 30, 2025 enlarge a trial court’s jurisdiction and is not a waiver of governmental immunity; it is “merely a procedural device for deciding cases already within a court’s jurisdiction.” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011) (per curiam); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see Sefzik, 355

2025Fox v. City of Austin, No. 03-06-00172-CV, 2006 WL 3452556 , at *3 n.2 (Tex. App.—Austin Dec. 1, 2006, no pet.) (mem. op.); see also McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex. App.—Fort Worth 1991, no writ) (rejecting argument that Section 101.0215 provides a waiver of governmental immunity independent of Section 101.021). 6 C.

1995State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979); Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.—Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex.App.—Fort Worth 1991, no writ).

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2018Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); see DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995).6 5 Perales notes that her live petition states that each defendant is “an individual who is a resident of Texas [and] has been served with process and answered herein.” The petition does not state, however, in which capacity those individuals were sued. 6 Citing DeWitt, the Texas Supreme Court stated in Franka that “a successful assertion of official immunity results in a waiver of governmental immunity” under the TTCA.

2018Franka v. Velasquez, 332 S.W.3d 367 , 383–84, n.79 (Tex. 2011) (citing DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995)).

2023A. Applicable Law While a waiver of governmental immunity is usually required for suit against a governmental entity, “an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars.” City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009).

2022A. Applicable Law While a waiver of governmental immunity is usually required for suit against a governmental entity, “an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars.” City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009).

2014Id. at 31 .

1989Salcedo, 659 S.W.2d at 31 .

2010See City of Elsa , 226 S.W.3d at 391–92; Heinrich , 284 S.W.3d at 373 n.6; City of Beaumont , 896 S.W.2d at 148–49; Lakey , 278 S.W.3d at 15 .

2010See City of Elsa, 226 S.W.3d at 391-92 ; Heinrich, 284 S.W.3d at 373 n. 6; City of Beaumont, 896 S.W.2d at 148-49 ; Lakey, 278 S.W.3d at 15 .

2009County of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002); Univ. of N. Tex. , 124 S.W.3d at 222 .

2009County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Univ. of N. Tex., 124 S.W.3d at 222 .

2005Id.

2005Id.