Freedman v. UH - Amicus Curiae Brief by Faculty Rights Coalition

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

Amicus Curiae, Wolfgang Hirczy de Miño, Ph. D., d/b/a FACULTY RIGHTS COALITION, submits this
brief on behalf of faculty members with employment contracts at the University of Houston System.
Amicus Curiae asks that the Court construe Section 111.33 of the Texas Education Code as a
statutory waiver of immunity to suit, and reverse the judgment of the trial court which dismissed Dr.
Freedman's breach of contract claim against the University for want of jurisdiction.

STATEMENT OF THE CASE

The instant appeal arises from the dismissal of a breach of contract claim of a tenured professor,
who alleges that the University of Houston has not fully satisfied its monetary obligations arising
from a written employment contract. The plaintiff initially sought declaratory relief and damages.

In response to the University's plea to the jurisdiction on sovereign immunity grounds, the plaintiff
pleaded Section 111.33 of the Texas Education Code as a statutory waiver of immunity to suit and
amended his pleadings to add a takings claim under the article I, section 17 of the Texas
Constitution, which is not barred by the doctrine of sovereign immunity.

The trial court nevertheless granted the University's plea to the jurisdiction on sovereign immunity
grounds and signed an order of dismissal without prejudice.

ISSUES PRESENTED

1. Does Section 111.33 of the Texas Education Code waive the University of Houston's sovereign
immunity to suit?

2. Did a 1985 amendment to Section 111.33 validly withdraw consent to suit and reinstate the
University's sovereign immunity at common law?

3. Does the 1985 amendment to Section 111.33 pass constitutional muster if construed as
repealing the right to sue the University?

4. Is the plaintiff entitled to proceed, and have his contract dispute adjudicated, under the Uniform
Declaratory Judgments Act?

5. Is a breach of contract claim actionable as a constitutional claim under the takings clause of the
Texas Constitution?

6. Assuming Section 111.33 does not confer consent to suit, was the case properly dismissed or
should it have been abated to allow the plaintiff to obtain a legislative resolution waiving immunity to
suit?

7. Assuming Section 111.33 does not confer consent to suit, was the case properly dismissed or
should Plaintiff have been allowed to replead and join or substitute defendants not shielded by
governmental immunity?

STATEMENT OF FACTS

In July 1995, Freedman, then Associate Vice President for Institutional Advancement at the
University of Houston-Clear Lake, accepted an appointment as Executive Associate Vice President
at the University of Houston for the period August 1, 1995 through August 31, 1997. Freedman and
the University entered into a written agreement. In addition to a leave of absence from his position
with UH-Clear Lake, the contract provided for a salary of $111,000 plus additional benefits to be
paid during the term of appointment. The contract further provided that if Freedman did not "stay at
UH" after the search process for a permanent Executive Associate Vice President, he was eligible
to return to UH-Clear Lake in his tenured faculty position at "75% of [his] administrative salary
current at that time."

In April 1997, the University established the Institute for the Future of Higher Education and named
Freedman as Co-Director, extending his leave from UH-Clear Lake through August 2000. He
continued to be paid in accordance with the Contract. However, in September 1999, the University
abruptly reduced his salary by 25 percent, claiming that "the original letter of agreement" actually
called for this reduction at the time he left the Executive Associate Vice President position and
began as Director of the Institute in August 1997. It did not. Under the terms of the Contract, the
only reduction was to be made at the time Freedman returned to his faculty position at UH-Clear
Lake.

The three year term of the Institute concluded and Freedman returned to his faculty position at
UH-Clear Lake. Upon his return in September 2000, the University made a second 25% reduction in
Freedman's salary. The Contract provided only for one reduction. (1)

SUMMARY OF THE ARGUMENT

When the State contracts with a private citizen, it waives immunity from liability but does not thereby
waive immunity to suit. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 (Tex. 1997).
Sovereign immunity bars suit for damages unless the State expressly gives its consent to the suit.
Id. at 405.

Professor Freedman may proceed in his suit against the University because Section 111.33 of the
Texas Education Code specifically authorizes the University of Houston to sue and be sued and
thus expressly waives the sovereign immunity to suit which the University, as a state entity, would
otherwise possess.

In the alternative, the professor may proceed under the Declaratory Judgment Act to have his
contract construed and liability determined, and is entitled to abatement to obtain legislative waiver
to sue for damages. Further in the alternative, the professor is entitled to reversal of the dismissal
judgment and remand of his case to the trial court so that he may amend his pleadings to name
individual university defendants.

ARGUMENT AND AUTHORITIES

I. STANDARD OF REVIEW

A plea to the jurisdiction contests the district court's authority to determine the subject matter of the
cause of action. See Amador v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex.App.-San
Antonio 1999, pet. denied); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi
1989, writ denied). Because the determination of subject matter jurisdiction is a question of law, it is
reviewed de novo on appeal. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.
1998). Unless the defendant pleads and proves that the plaintiff's allegations were fraudulently
made to confer jurisdiction, they are accepted as true. See Continental Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). Because UH has not asserted any such fraudulent
pleading here, Freedman's allegations should be accepted as true. Tsumi v. Texas Parks and
Wildlife Dep't et al, 23 S.W.3d 58 (Tex.App.-Austin, 2000, pet. denied). Unless the face of the
petition affirmatively demonstrates a lack of jurisdiction, the district court must liberally construe the
allegations in favor of jurisdiction. See Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.
1989). When reviewing the district court's dismissal, the court of appeals reviews the pleadings in
favor of the pleader and looks to the pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control
Bd., 852 S.W.2d 440, 446 (Tex. 1993).

II. SOVEREIGN IMMUNITY TO SUIT AND LIABILITY IN TEXAS

Sovereign immunity consists of two distinct principles, immunity from suit and immunity from liability.
General Serv. Comm'n v. Little Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001); Tex. Dep't of
Transp. v. Jones, 8 S.W. 3d 636, 638 (Tex. 1999). When the state contracts with a private
individual, it waives immunity from liability. Immunity from suit, however, must be waived by the
State's express consent or else the action against it is barred. Id.; also see Fed. Sign, 951 S.W.2d
at 405; Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970).
The act of contracting, however, does not waive the state's immunity from suit even if its liability is
not disputed. Federal Sign, 951 S.W.2d, at 405. Under the current state of the law, a private citizen
must thus generally have legislative consent to sue the state on a breach of contract claim. Brown
v. UTHSC at Tyler, 957 S.W.2d 911, 914 (Tex.App.-Tyler 1997, no pet.). Intermediate courts of
appeal have judicially carved out exceptions in a number of cases. Some of these have since been
overruled by the Texas Supreme Court. General Serv. Comm'n v. Little Tex Insulation Co., Inc, 39 S.
W.3d 591, 594 (Tex. 2001); Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849
(Tex. 2002). The law of sovereign immunity, in state as well as in the federal court (in the form of
Eleventh Amendment jurisprudence), remains in flux.

III. SECTION 111.33 OF THE TEXAS EDUCATION CODE WAIVES THE UNIVERSITY OF
HOUSTON'S IMMUNITY TO SUIT

A. The Power to Sue and Be Sued Language in Section 111.33 Constitutes a Valid
Legislative Waiver of Immunity to Suit

A party suing the governmental entity must establish the state's consent, which may be alleged
either by reference to a statute or to express legislative permission. Missouri Pac. R.R. Co. v.
Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970). (2)

A legislative waiver of sovereign immunity must be expressed in clear and unambiguous language.
Tex. Gov't Code § 311.034; University of Tex. Medical Branch v. York, 871 S.W.2d 175, 177 (Tex.
1994).

Texas Education Code §111.33 captioned "Suits" satisfies that requirement. It unambiguously
states as follows:

The board has the power to sue and be sued in the name of the University of Houston. Venue shall
be in either Harris County or Travis County.

Acts 1971, 62nd Leg., p. 3272, ch. 1024, art. 1, § 1, eff. Sept. 1, 1971. Amended by Acts 1985,
69th Leg., ch. 378, § 1, eff. Aug. 26, 1985.

Such "right to sue and be sued" language has been held to amount to an express waiver of
immunity from suit. Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14
(Tex. 1970); Alamo Community Coll. District v. Obayashi Corp., 980 S.W.2d 745 (Tex.App-San
Antonio 1998). The University does not dispute this point. See Appellee's Brief, pp. 9, 15; Fazekas
v. University of Houston, 565 S.W.2d 299 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.),
440 U.S. 952; 99 S. Ct. 1487; 59 L.Ed 2d 765; 1979 (Appeal dism'd for want of substantial federal
question); Delaney v. University of Houston, 792 S.W.2d 733 (Tex.App-Houston [14th Dist.] 1990).

B. The 1985 Legislative Amendment Does Not Withdraw General Consent to Suit Against
The University of Houston

The University effectively argues that a 1985 Amendment repeals and renders ineffective the "right
... to be sued" provision at the beginning of the Section 111.33 and thus reinstates common law
sovereign immunity.

The Amendment added the following sentence:

Nothing in this section shall be construed as granting legislative consent for suits against the
board, the University of Houston system, or its component institutions and entities except as
authorized by law.

Acts 1985, 69th Leg., ch. 378, § 1, eff. Aug. 26, 1985.

Such a reading, however, is contrary to well-established rules of statutory construction. Had the
Legislature intended to repeal the statutory authority for suits against UH, it could have and would
have deleted the word "and be sued" from the "power to sue and be sued" phrase. Instead the
Legislature opted to add an additional sentence. It must be presumed that the addition had
substantive import, for it is a well-established rule of statutory construction that every word,
sentence, clause and phrase should be given effect. University of Tex. v. Joki, 735 S.W.2d 505,
508 (Tex.App.-Austin 1987, writ denied)(citing Ex parte Pruitt, 551 S.W.2d 706, 709 (Tex. 1977)).
Construction of a statute which would make a provision a useless appendage is not favored.
Carson v. Hudson, 398 S.W.2d 321, 323 (Tex.Civ.App.-Austin 1996, no writ). The interpretation
urged by the University would do exactly that. It would render both provisions needless surplusage
for two reasons:

First, the two provisions would be contradictory and would cancel each other out. When construing
a statute, however, one provision should not be given meaning out of harmony or inconsistent with
other provisions. The statute must be considered as a whole rather than its isolated provisions.
Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493, 44 Tex. Sup. Ct. J. 675 (Tex. 2001). The well
established rules of statutory construction require the court to presume that the entire statute is
intended to be effective. See TEX. GOV'T CODE ANN. § 311.021 (2)(Vernon 1998).

Second, a statutory provision stating that UH has not waived immunity would be redundant, for in
the absence of a legislative waiver the University would enjoy sovereign immunity pursuant to the
common law.

C. The Statutory Language in Section 111.33 Is Unambiguous and Does Not Require
Resort to Legislative History for Interpretation

The University also argues in effect that the statement "except as authorized by law" should be
read as "except as authorized by statutory law." Again, such a reading is at odds with
well-established rules of statutory construction.

If the Legislature wanted to restrict the scope of permissible suits to statutory causes of action, it
would have said so. It did not. Instead it used the term "law" without restriction or qualification. "Law"
certainly encompasses the full panoply of statutory law, constitutional law, and common law. The
terms "authorized" and "authority" analogously are not limited to the acts of a legislature. Indeed
every brief filed in this and other appellate courts must contain a table of authorities, which cites the
decisional law, statutes, constitutions and other relevant forms of law relied upon in appellate
advocacy.

If the language of the statute is unambiguous, then the court must seek the legislative intent as
found in the plain and common meaning on the words and terms used. Sorokolit v. Rhodes, 889
S.W.2d 239, 241 (Tex. 1994); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939
(Tex. 1993). Common words should be interpreted as they are commonly used. Elgin Bank v.
Travis County, 906 S.W.2d 120, 121 (Tex.App.-Austin 1995, writ denied).

Since the language of the statute is express and unambiguous, no resort to legislative history in aid
of statutory construction is called for. In any event, it is difficult to determine the motives of the
members of the majorities of Texas House and Senate who approved the bill. Singular statements
may not accurately reflect the intent of the majority.

D. Section 111.33 Waives Immunity to Suit, but Requires Pleading of Established Causes
of Action Based on Common Law or Statutory Law and Compliance with Statutory
Jurisdictional Prerequisites.

The proper reading of the "except as authorized by law" phrase is as a clarification that Section
111.33 in itself does not authorize suits against the University, but that any such suit must allege a
cause of action valid under Texas law. For example, one could not sue the University for a
temporary injunction, relying only on Section 111.33, without having a valid statutory or common
law cause of action and a probable right to relief.

Stated differently, section 111.33 in itself does not create a cause of action. Nor is it a vehicle for
the assertion of novel claims not based on a recognized cause of action. It merely opens the
courthouse door for suits against the University of Houston that would otherwise be barred under
the sovereign immunity regardless of merit.

The "except as authorized by law" language makes it clear that litigants must satisfy the
requirements of statutes and decisional law. Some statutory causes of action, for example, have
jurisdictional prerequisites, which Section 111.33 does not suspend. Some statutory causes of
action have no common-law predecessor or counterpart. Many common law causes of action still
are not addressed or superseded by statute. Some common law actions are clearly barred
because the Legislature has abolished them. The "except as authorized by law" provision does not
say that the common law causes of action that are still part of our law-i.e. have not been abolished
by the Supreme Court or the Legislature-- are not authorized in suits against the University. This
Court should reject such a self-serving interpretation by the University.

Contrary to the University's claims, Freeman's interpretation of the 1985 amendment would not
render the amendment meaningless. The amendment serves a valid purpose:

It limits the general right to sue the University of Houston- and thus the statutory waiver of immunity
- to established causes of action under Texas law, and makes it plain that it does not create an
independent source of authority to sue the university where no action is otherwise authorized by
statute or under common law. Moreover, it requires that litigants comply with statutory schemes,
such as exhaustion-of-administrative-remedies requirements, before filing suit.

IV. THE 1985 AMENDMENT TO §111.33 IS UNCONSTITUTIONAL

A. Assuming the 1985 Amendment Is Correctly Construed as Withdrawing Consent to Suit on Valid
Causes of Action, it Is Unconstitutional Because it Impermissibly Impairs Contractual Property
Rights and Deprives Individuals of Due Process, Due Course of Law, and Just Compensation.

Should the Court construe the 1985 Amendment as urged by the University, it should strike it down
as unconstitutional on its face. Construed as taking away the very rights protected by the first
sentence, it cannot pass constitutional muster on multiple independent constitutional grounds.

The Fourteenth Amendment's due process guarantee applies to public employees who have a
"property interest" in the terms or conditions of their employment. Board of Regents v. Roth, 408
U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d 548 (1972). In Texas, property rights are considered "sacred
and fundamental." State v. Texas City, 295 S.W.2d 697, 704 (Tex.Civ.App.-Galveston 1956), aff'd,
157 Tex. 450, 303 S.W.2d 780 (Tex. 1957). In the case at bar, the protected property interest
arises from Freedman' written employment contract with the University of Houston.

It is well-settled that a state entity waives immunity to liability by contracting with a private individual.
General Services Comm'n v. Little-Tex Insulation, 39 S.W.3d 591, 594 (Tex.2001). It is also
undisputed, that the "sue and be sued" language of Section 111.33, standing alone, allows a
Plaintiff to seek vindication of his or her contractual rights. Delaney v. University of Houston, 792
S.W.2d 733 (Tex.App-Houston [14th Dist.] 1990)(While not creating liability, §111.33 grants
permission for UH to be sued). (3)

To the extent the 1985 Amendment abrogates that right, and forecloses such relief, it deprives
Plaintiff, and all others in his position, of a vested property right without any process whatever.

If the 1985 amendment is indeed correctly interpreted as effectuating the denial of the rights
individuals have pursuant to their contracts with the University of Houston in conjunction with the
"right ... to be sued" provision in section 111.33, then it is unconstitutional on its face. This is so
because the Amendment would impair these individuals' contractual rights in violation of Article I
§16 of the Texas Constitution, deprive these individuals of their contractual property rights without
any semblance even of fairness in violation of the due course of law provision of Art I §19, and
would further violate Article I §17 of the Texas Constitution because it does not provide for
adequate compensation.

V. THE PLAINTIFF IS ENTITLED TO PROCEED WITH HIS DECLARATORY JUDGMENT CLAIMS

The Uniform Declaratory Judgments Act (UDJA) authorizes Texas courts of record to declare the
rights of a person interested in a "deed, will, written contract, or other writings constituting a
contract or whose rights, status, or other legal relations are affected by a statute, municipal
ordinance, contract or franchise." TEX.CIV.PRAC. & REM. CODE §§ 37.004(a). Declaratory
judgment actions are appropriate means to determine questions of construction or validity. A court
may also construe a constitutional provision under the Act. See Chenault v. Phillips, 914 S.W.2d
140, 141, 39 Tex. Sup. Ct. J. 204 (Tex. 1996). The Act waives sovereign immunity when used to
declare rights under a statute or ordinance. Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446
(Tex. 1994).

A. The Case at Bar Presents Three Distinct Construction Issues Appropriate for
Declaratory Judgement

In this case, three distinct construction issues are in dispute: (1) the construction of Freedman's
written contract with the University; (2) the construction of Section 111.33 of the Texas Education
Code as it pertains to the University's alleged immunity to suit; (3) and the construction of the
takings, due course of law, and open courts clauses of the Texas constitution. Not only is the
Plaintiff entitled to bring and maintain suit to seek judicial declaration of his legal rights under the
UDJA, he may also be entitled to attorney's fees. Freedman may have a legitimate claim to such
fees even if the three construction issues, and the substantive contract claim, are not resolved in
his favor. The UDJA waives sovereign immunity so that defendants may be held liable for attorney's
fees. Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994). It invests the trial court with
discretion to award just and equitable attorney's fees. See Bocquest v. Herring, 972 S.W.2d 19, 21
(Tex. 1998); Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720, 729 (Tex.App.-Waco 1998, pet.
denied); TEX. CIV. PRAC. & REM. CODE ANN. § 37.009(Vernon 1997). Award of attorney's fees is
not dependent on a finding that a party substantially prevailed. Barshop v. Medina Cty.
Underground Water Conserv. Dist., 925 S.W.2d 618, 637 (Tex. 1996).

B. Declaratory Judgment Is Clearly Appropriate in this Case for a Number of Reasons.

First, there is a justiciable controversy over contract construction which is separate and distinct
from the question of whether a breach-of-contract suit is authorized or not. Freedman, as a party to
the contract, is entitled to have the dispute about how to properly read the contract adjudicated by
declaratory judgment, even if he is unable to prosecute a suit for damages for want of subject
matter jurisdiction, should he wish to pursue one after a court of competent jurisdiction has decided
whether his interpretation of his contracts is indeed correct.

Second, the University has already waived immunity to liability when it contracted with Freedman, a
private individual. Thus declaratory judgment can arguably also be had on the issue of liability even
though no money judgment can be rendered in the absence of legislative waiver for a suit for
damages.

Third, a money judgement (except for attorneys fees) cannot be obtained through a declaratory
judgment action. The jurisdictional bar against suit for damages, assuming it can be validly
asserted, simply does not apply when the relief sought is declaratory in nature. Thus, the public
treasury, which sovereign immunity is purportedly meant to protect, stands to suffer no harm. The
fact that a declaratory judgment to construe a contract is authorized even before a breach occurs,
and any harm is suffered, further illustrates that it is separate and distinct from a suit for damages
occasioned by a breach. See CIV. PRAC. & REM. CODE §37.004(b).

C. The University's Reliance on Haden Is Misplaced

The University cites W.D. Haden Co. v. Dodgen for the proposition that a plaintiff cannot use the
vehicle of the Declaratory Judgment Act "to compel performance of or enforce rights arising out of
a contract with a state agency made on behalf of the state." 158 Tex. 74, 308 S.W.2d 838, 839
(1958). However, this argument is beside the point, for the purpose of declaratory judgment is to
clarify legal relations and to declare rights or obligations, not to enforce them. Freedman is entitled
to obtain a judicial determination resolving the contested issue of the 25%-cut provision in his
contract. Moreover, since immunity to liability has been waived, he is arguably also entitled to a
judicial finding of such liability. He is not entitled to an enforceable monetary judgment against the
University under the Declaratory Judgments Act. Indeed, such relief is unavailable under the UDJA.
Should the Plaintiff later obtain permission to sue for damages by legislative resolution pursuant to
CIV. PRAC. & REM. CODE §107.001, he can then seek to have the rights under his contract
previously adjudicated by declaratory judgment enforced against the University, assuming he can
prove the university's unexcused breach of a contractual obligation on the merits.

D. Declaratory Judgment Can Serves a Variety of Useful Purposes

Nor is the ultimate goal of securing a money judgment against the state necessarily an element of a
declaratory judgment claim involving a contract or alleged contract between an individual and a
state entity. Other purpose might be served as well.

For example, a litigant suing a third party for tortious interference with a contract between the
litigant and the state would have to establish the existence of such a contract as an element of his
or her cause of action against the third party. The question of whether a contract subject to
interference was in effect would be an appropriate subject matter for declaratory judgment.

Another example would be a wrongful termination suit under 42 U.S.C. § 1983 alleging an
unconstitutional deprivation of a vested property interest arising from an alleged employment
contract with the state. If the existence or validity of the contract is disputed, a determination of the
validity and existence of the contract would be essential to the adjudication of the due process
claim. For, without a vested property interest, there can be no actionable due process violation.
Again, the existence of a contract would be an appropriate subject matter for declaratory judgment.

In sum, the mere fact that a Plaintiff would like to collect damages does not mean he is not entitled
to avail himself of the Declaratory Judgment Act for the purpose for which it was enacted. Indeed,
his ultimate goals are irrelevant. The Act cannot be used as a vehicle to compel specific
performance or payment of damages. The insinuation that Freedman is somehow improperly
"disguising" the true nature of his claims by "recasting" them as claims for declaratory relief is
disingenuous at best.

VI. A STATE AGENCY'S BREACH OF CONTRACT SHOULD BE HELD SUFFICIENT TO SUPPORT
A "TAKINGS" CLAIM UNDER THE TEXAS CONSTITUTION

A. Claim of Unconstitutional Taking Does Not Require Waiver of Immunity

The doctrine of sovereign immunity does not shield state entities from an action for compensation
under the takings clauses of the Texas or United States Constitutions. General Services Comm'n v.
Little-Tex Insulation, 39 S.W.3d 591, 598, 44 Tex.Sup.Ct.J. 397 (Tex. 2001); Steele v. City of
Houston, 603 S.W.2d 786, 791 (Tex. 1980). In Steele v. City of Houston, the Supreme court stated,
"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." 603 S.W.2d 786, 791(Tex. 1980). No immunity waiver is thus required.

B. Elements of a Takings Claim

To state a claim for an unconstitutional taking a plaintiff is required to allege in good faith only that
(1) defendant intentionally performed certain acts, (2) that resulted in a 'taking' of property, (3) for
public use. General Services Comm'n, 39 S.W.3d at 598 (citing Steele, 603 S.W.2d at 788-92).

All three elements are satisfied in this case. Freedman contends that the University retained part of
the payment that was due to him under his employment contract. Freedman does not contend that
this was a mistake or mere negligence. Moreover, such mistake could have been corrected when
Freedman complained about nonpayment and demanded payment in writing. The University's
affirmative refusal to render payment when demand therefor was made was thus intentional.
Secondly, the University's action deprived Freedman of a vested property interest created by his
contract. Thirdly, the University is a state entity, all of whose expenditures are for public use. As a
state entity the University is prohibited from utilizing its resources for private purposes. See TEX.
CONST. art. III, §51; art. VIII, §3; art. XVI, §36a. The public funds saved by not fully compensating
Freedman for his performance must thus be presumed to have been diverted to other public use.
Accordingly, Plaintiff's pleadings state a claim for an unconstitutional taking and in doing so
sufficiently invoke the trial court's jurisdiction.

C. Pleadings must Be Construed Liberally in Plaintiff's Favor

Unless the defendant pleads and proves that the plaintiff's allegations were fraudulently made to
confer jurisdiction, they are accepted as true. See Continental Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 449 (Tex. 1996). Because the University has not asserted any such fraudulent
pleading here, Freedman's allegations should be accepted as true. Tsumi v. Texas Parks and
Wildlife Dep't et al, 23 S.W.3d 58 (Tex.App.-Austin, 2000, pet. denied). The court of appeals
reviews the pleadings in favor of the pleader and looks to the pleader's intent. See Texas Ass'n of
Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Unless the face of the petition
affirmatively demonstrates a lack of jurisdiction, the district court must liberally construe the
allegations in favor of jurisdiction. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).

D. The Proper Manner to Challenge a Deficiency in Pleading Is by Special Exception

Under the Texas Rules of Civil Procedure, the proper way for a defendant to urge that a plaintiff
has failed to properly plead a cause of action is by special exception. Massey v. Armco Steel Co.,
652 S.W.2d 932, 934(Tex. 1983); Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.
1974). The trial court cannot dismiss the case at the same time it sustains special exceptions.
Friesenhahn v. Ryan, 960 S.W.2d 656, 658-59 (Tex. 1998). Once special exceptions are
sustained, the trial court must give the party against whom the exceptions are sustained an
opportunity to amend before dismissing the case. Id. The rationale for special exceptions is to
inform the opposing party of a defect in his pleading so that he may cure it, if possible, by
amendment. Here, the University has not filed any special exception to point to a deficiency in
Plaintiff's pleading of the elements of his takings claim.

Looking at the allegations in plaintiff's petition, taking them as true, and construing them in the light
most favorable to the pleader, this Court should thus hold that Freedman's petition states a claim
for an unconstitutional taking. Accordingly, the dismissal judgment should be reversed and the
case remanded to the trial court to allow Freedman to proceed with his takings claim on the merits.

E. Little Tex Did Not Involve an Employment Contract

Amicus acknowledges apparent adverse Supreme Court authority and will address it below. In
General Serv. Comm'n v. Little Tex Insulation Co., Inc, 39 S.W.3d 591, 598-99 (Tex. 2001) the
Supreme Court ruled that when a state agency allegedly fails to comply with the terms of a contract,
it does not commit a constitutional 'taking.' The court also declined to adopt a waiver-by-conduct
exception to sovereign immunity because the legislature has established an administrative process
for resolving certain breach-of-contract claims against the State.

Little Tex, however, can be distinguished, as argued infra. To the extent that the Court's holding in
Little Tex mandates dismissal of Plaintiff's case for want of jurisdiction, it should be overruled. While
this court is bound by precedent, the Supreme Court is free to overrule its own precedents, and will
be in a position to do so, should a petition for review be filed, and granted, following disposition of
the appeal in this court.

F. University Officials' Acts in Depriving Plaintiff of a Vested Property Support Claims for
Equitable Relief under State Law and Damages under Federal Law.

It is well settled that no waiver of sovereign immunity is necessary before one may sue the State for
the taking of a vested property right without due course of law. See Stone v. Texas Liquor Control
Bd., 417 S.W.2d 385, 385-86 (Tex. 1967). Although there is no cause of action for damages under
Texas law, a plaintiff whose constitutional rights have been violated may sue for equitable relief.
City of Beaumont v. Bouillion, 896 S.W.2d 143, 150 (Tex. 1995); Courtney v. University of Tex., 806
S.W.2d 277, 283-85 (Tex.App.-Fort Worth 1991, writ denied). Nor does sovereign immunity prevent
the assertion of a claim alleging that the state or state officials deprived the plaintiff of property
without due process of law under the Fourteenth Amendment. Martine v. Board of Regents, 578
S.W.2d 465, 472 (Tex.Civ.App.-Tyler 1979, no writ). Federal due process violations are actionable
under 42 U.S.C. § 1983. Accordingly, the dismissal judgment should be reversed and Freedman
should be given an opportunity to replead, as argued below.

VII. REMAND TO THE TRIAL COURT IS APPROPRIATE EVEN IF THE COURT OF APPEALS
RULE IN THE UNIVERSITY'S FAVOR ON ALL QUESTIONS OF LAW,

A. Jurisdictional Defect, If Any, Is Curable

A plea to the jurisdiction is a dilatory plea whose purpose is to defeat the cause of action without
defeating the merits of the case. It is a vehicle by which a party contests the trial court's authority to
determine the subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554, 44 Tex. Sup. Ct. J. 125 (Tex. 2000); TRST Corpus, Inc. v. Financial Center, Inc., 9 S.W.3d
316, 320 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Id. "In order to prevail, the party
asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiff's
pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the
pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court."
Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.) (emphasis added).

Here, the jurisdictional default, if any, can be cured in two ways, even if the Court determines that
Section 111.33 does not waive immunity and that the Plaintiff cannot proceed on any other cause
of action (takings claim and declaratory judgment claim): (1) Consent to suit may be obtained from
the Texas Legislature; (2) Claims could alternatively be asserted against university official(s) who
had the ministerial duty to execute the contract.

B. Plaintiff Should Be Allowed to Seek Legislative Resolution While Limitations Are
Effectively Tolled by Abatement of Pending Suit.

Freedman can overcome the jurisdictional obstacle by obtaining waiver to suit by legislative
resolution, in which case his case should be abated, not dismissed. The trial court's order granting
a plea in abatement suspends further action in the case in that court until the impediment - and
cause for the abatement - is removed. Continental Contractors, Inc, v. Thorup, 578 S.W.2d 864,
866 (Tex.App.-Houston [1st Dist.] 1979, no writ). This would prevent the Plaintiff's from being
unfairly prejudiced by the delay caused by the need to obtain legislative consent from a state
legislature that only convenes every other year, as long as he filed his suit within the applicable
limitations period. Dismissal, even without prejudice, would require him to re-file after obtaining
consent to suit by legislative resolution, when it may be too late.

C. Plaintiff Should Be Allowed to Sue Individuals at the Governmental Entity By Means of
Substitution of Parties or Joinder.

Freedman could also cure the jurisdictional defect, if any, by amending his pleadings to bring his
claims against individual university defendants who do not enjoy sovereign immunity. A suit
challenging an agency's or its official's actions as being unlawful is not a suit against the state
requiring legislative or statutory consent. Director Etc. v. Printing Indus. Ass'n of Texas, 600 S.W.2d
264, 266 (Tex. 1980); Texas Highway Comm's v. Texas Ass'n of Steel Importers, Inc., 372 S.W.2d
525, 530 (Tex.1963); Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 404 (Tex. 1997). Therefore,
a suit to determine rights may be maintained without legislative permission.

As government officials these defendants may invoke official immunity against damage claims, but
official immunity is an affirmative defense that has to be pleaded and proven. It is not a
jurisdictional bar and is properly asserted in a motion for summary judgment. A defendant seeking
a summary judgment on an affirmative defense of immunity must prove, without dispute and as a
matter of law, that when the event in question occurred, he or she was: (1) performing a
discretionary function, (2) acting in good faith, and (3) acting within the scope of his or her
authority. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1995). To the extent that
university officials had no discretion in giving effect to the terms of Freedman's contract, they may
possibly be held liable for damages individually. A suit against a governmental official in his or her
individual capacity is not a suit against the sovereign and thus not subject to a sovereign immunity
defense.

Since either of these actions by Freedman (obtaining a resolution, amending his petition) will confer
jurisdiction upon the trial court, dismissal even without prejudice is improper. Accordingly, the
dismissal judgment should be reversed and the cases remanded to the trial court for further
proceedings.

D. Plaintiff Complied with Obligation to Plead Waiver of Immunity and Should not be
Penalized For Not Correctly Anticipating this Court's Ruling on Unsettled Questions of
Law.

The plaintiff bears the burden of alleging facts that affirmatively show the trial court has subject
matter jurisdiction. Since the instant case involves a plea to the jurisdiction based on sovereign
immunity to suit, the Plaintiff also had the burden of pleading waiver of immunity to suit.

Freedman has discharged his responsibility to plead waiver of immunity to suit by invoking Section
111.33. Until the appellate court renders judgment, the question of whether or not Section 111.33
constitutes general consent to suit against the University of Houston remains unsettled. Freedman
did not have the benefit of a single appellate court decision that constitutes clear, binding
precedent on the issue. (4) No amount of diligence or case law research would have put Plaintiff in
a position to predict the trial court's or the appellate court's ruling on this issue of statutory
construction.

If a petition fails to allege jurisdictional facts, the plaintiff has a right to amend before the trial court
dismisses the cause. Harris County v. Progressive National, ___ S.W.3rd ___ (Tex.App.-Houston
[14th Dist.] 2002). Here, the Plaintiff had his entire case dismissed before the court of appeal's
eventual disposition of the statutory construction issue could have been known to him. Plaintiff
deserves an opportunity to replead in light of the Court's holding, just as other, similarly situated
litigants would be able to rely on this court's holding in this case when filing their original petition or
amending their live pleadings in pending litigation.

E. The Court Should Remand to Allow Substitution of Defendants or Correction of
Misidentification of the Proper Defendant.

Should the Court rule that Freedman cannot prevail against the University's plea to the jurisdiction
by pleading Section 111.33 as a legislative waiver of immunity to suit, and thus make it clear to him
retroactively that his petition failed to state a claim against a defendant amenable to suit, Freedman
should be allowed to replead and assert claims against a defendant not shielded by sovereign
immunity, i.e. the university's official(s) who had a ministerial duty to effect payment to Freedman
for the proper amount pursuant to the terms of his contract.

The University did not file special exceptions to inform Freedman of a pleading deficiency in the
form of a failure to assert his claims against the university official responsible for his alleged injury.
If the University had done so, Freedman would have been entitled to amend his pleadings to join or
substitute the proper defendant(s) individually, rather than facing dismissal of his suit. See
Friesenhahn v. Ryan, 960 S.W.2d 656, 658-59 (Tex. 1998).

Nor has the University filed a cross-claim against one of its officials in their individual capacity.
Plaintiff should not be held responsible for Defendant's omissions. Nor should Plaintiff be held
responsible for failure to join all possible defendants before he knew that he could not maintain his
breach of contract suit against the University on the basis of Section 111.33 and recover all of his
damages from the institutional defendant and party to the contract. In theory Plaintiff could refile his
claims under a new cause number, naming as defendant(s) the university official(s) responsible for
unconstitutionally depriving him of a vested property interest arising from his contract. Even though
such an action may not be barred by res judicata or collateral estoppel, it may not be a viable
remedy now because the statute of limitations may have run.

Accordingly, the dismissal judgment against Freedman should be reversed and the case remanded
to the trial court for further proceedings.

VIII. This Court Is Not Bound by Federal Sign, Little-Tex, and Progeny In Deciding this
Case Because This Case Can Be Distinguished.

A. Federal Sign and Little Tex Are Inapposite

The University faults Freedman for failing to mention General Serv. Comm'n v. Little Tex Insulation
Co., Inc., 39 S.W.3d 591 (Tex. 2001). In Little Tex the Texas Supreme Court again declined to
judicially abrogate sovereign immunity and did so with reference to the fact that the Legislature has
since provided a remedy. Little Tex, however, is inapposite insofar as it involved a different kind of
contract. The administrative process provided by the Legislature in Chapter 2260 of the
Government Code applies only to "written contract between a unit of state government and a
contractor for goods or services, of for a project as defined by Section 2166.001." It specifically
excludes from the definition of contractor "an employee of a unit of state government" TEX. GOV'T
CODE §2260.001(2)(B), thus affording plaintiffs in Freedman's position no remedy. IT-Davy can be
distinguished on the same ground. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74
S.W.3d 849 (Tex. 2002)(holding that sovereign immunity doctrine bars general contractor's breach
of contract and other claims). (5)

Thus, the argument in favor of judicial recognition that state entities waive immunity to suit by
conduct beyond the mere execution of a contract is as a strong as ever with respect to contract
claims not covered by Section 2260. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 n.1
(Tex. 1997).

The majority opinion in Federal Sign recognizes that "there may be other circumstances where the
State may waive its immunity by conduct other than simply executing a contract." Federal Sign v.
Texas S. Univ., 951 S.W.2d 401, 408 (Tex. 1997). One such circumstance is when the state entity
has accepted performance under the terms of a contract and refuses to pay. Alamo Community
College District v. Obayashi Corp., 980 S.W.2d 745 (Tex.App.-San Antonio 1998). Another is when
the state entity has induced individuals to accept an employment contract without disclosing that it
has no intention to be held to its terms in case of dispute.

IX. LACK OF NOTICE TO FACULTY AT UH REGARDING POLICY OF INVOKING SOVEREIGN
IMMUNITY IN CONTRACT DISPUTES IS UNCONSCIONABLE AND SHOULD BE HELD TO WAIVE
RIGHT TO INVOKE SOVEREIGN IMMUNITY, IF ANY.

A. Faculty Sign Employment Contracts in Good Faith, Believing They Are Enforceable

The University of Houston is an institution of national statute and recruits faculty from all over the
country. Indeed the hiring of new tenure-track and tenured faculty requires a national search.
Prospective faculty members, when offered contracts, in good faith rely on the belief that contracts
are legally binding on both parties and enforceable in court in case of breach. That is the law with
respect to contracts generally. It is also the law with respect to state universities in most states. In
retaining sovereign immunity to suit, Texas is an anomaly and most people, including faculty at UH,
are unaware of it.

Most importantly, they sign contracts that fail to disclose that the university routinely invokes
sovereign immunity in contract disputes and thus precludes an adjudication on the merits.

The state deliberately leaves faculty in the dark about the law of sovereign immunity and the
Attorney General's policy of defending breach-of-contract suits on immunity grounds. Faculty, in
good faith, rely on the terms of the contract, perform their part of the bargain, and expect the
University to do likewise, only to discover in case of a breach that they have no judicial remedy.

The conduct of the University in fraudulently inducing faculty employment contracts by failure to
disclose that it does not intend to be bound by the terms in case of dispute would otherwise be
actionable in tort. This court should not condone and endorse this systematic practice of
misleading faculty about their contractual rights (or rather lack thereof).

B. Nondisclosure Is Fraudulent, Fundamentally Unfair, and in Need of Judicial Redress.

Amicus urges the Court to judicially establish the doctrine that the State waives its right to invoke
sovereign immunity in breach of contract suits where the state failed to inform individuals at the
time the contract was formed of its intent to "resolve" subsequent contract disputes by invoking
sovereign immunity. Amicus urges this Court to so hold on the grounds that such non-disclosure of
the lack of enforceability of employment contracts against the University because of sovereign
immunity, if any, is unconscionable and fundamentally unfair. (6)

CONCLUSION

For the foregoing reasons, Amicus Curiae, individually and on behalf of all faculty members with
contracts at the University of Houston System, respectfully requests that the Court construe Section
111.33 of the Texas Education Code as conferring the right to sue the University of Houston for
common law breach of contract, and reverse the trial court's dismissal judgment against Professor
Freedman accordingly.

Respectfully submitted,

________________________________________

WOLFGANG HIRCZY DE MIÑO, PH.D.
Amicus Curiae, individually, and on behalf
of others similarly situated
Texas Bar Card No. 32143 [non-attorney member]

Department of Social Sciences
University of Houston Downtown
One Main Street
Houston, TX 77002

FACULTY RIGHTS COALITION
2038 1/2 Lexington
Houston, TX 77098
Tel: (713) 806-8517
Fax: (713) 527-0391
Email: w_demino@yahoo.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this amicus curiae brief has been served on all counsel of
record, as indicated below, by U.S. mail on April 24, 2003.

Jeff Armstrong
Assistant Attorney General
P.O. Box 12548, Capital Station
Austin, Texas 78711
Tel.: 512-463-2120
Fax: 512-320-0667

Robert Jones
Sheila P. Haddock
BARLOW, TODD, JORDAN & JONES. L.L.P.
17225 El Camino Real, Suite 400
Houston, Texas 77058
Tel: 281-488-8440
Fax: 281-488-6832

_______________________________________
WOLFGANG HIRCZY DE MINO, PH.D.

Endnotes

1. The statement of facts is based on Freedman's First Amended Petition. (C.R. 34-35) In reviewing
a dismissal judgment, the plaintiff's factual allegations are taken as true. Peek v. Equipment Serv.
Co., 779 S.W.2d 440, 446 (Tex. 1993).

2. The state also waives its immunity to suit when it invokes trial court jurisdiction by initiating a
legal action as a plaintiff, a scenario not present here. Texas Natural Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849 (Tex. 2002); State of Texas v. Walker, 142 F.3d 813 (5th Cir. 1998) (State
university sued professor for breach of contract and conversion). Relying on similar reasoning, the
U.S. Supreme Court recently held that a state also waives Eleventh Amendment immunity when it
removes an action from state court to federal court. Lapides v. Board of Regents, 535 U.S. 613,
122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).

3. The University states in its brief "When §111.33 was passed with the 'sue and be sued'
language, the bar of sovereign immunity was legislatively removed." See Appellee's Brief, p. 15.

4. To the extent the court's holding in Fazekas is still good law, it supports Plaintiff's position.

5. Moreover, the contractor in that case sought money over and above the original contract amount
in the form of extra costs and lost profits occasioned by additional work.

6. By contrast, nothing prevents the University from suing faculty members for breach of contract,
should they so choose. See State of Texas v. Walker, 142 F.3d 813 (5th Cir. 1998).

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To see the Table of Contents and Disclosure Statement, click here.

For list of faculty employment and First Amendment
case cites, and links to appellate opinions, click Higher Education Court Cases Texas