Texas Supreme Court Shuts Courthouse Door to Many Plaintiffs

-----------------------------------------------------------------------------------------------------------------------------------------------

SOVEREIGN IMMUNITY ISSUES BEFORE THE TEXAS SUPREME COURT

------------------------------------------------------------------------------------------------------------------------------------------------
Texas A&M University: Can the university be sued for breach of contract?

Supreme Court Docket No . 05-032 1 TEXAS A&M UNIVERSITY SYSTEM V. DR. SEFA KOSEOGLU
No. 05-0321 A&M University's B rief in the Supreme Court
No. 05-0321 A&M University's Reply Brief in the Supreme Court
No. 05-0321 Brief of Respondent Dr. Sefa Koseoglu
On the University's Petition for Review from the 10th Court of Appeals (Waco):
Texas A&M University System v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. filed 4/22/05 and granted
5/26/06; oral argument held November 14, 2006)

UPDATE: Texas Supreme Court decides the case; see opinion --> Texas A & M Univ. Sys. v. Koseoglu, No. 05-0321 (Tex. Sep.
7, 2007)(Green)

Issues presented:

Is state university immune to suit for breach of settlement agreement?
See Texas A&M Univ.-Kingsville v. Lawson, 127 S.W.3d 866 (Tex.App.- Austin 2004, pet. denied).

Is a university official, in his official capacity, entitled to interlocutory appeal of denial of plea to the
jurisdiction under the statutory provision that authorize interlocutory review for governmental units?
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 2004-2005).

The Waco Court of Appeals held that the university official named as a defendant was not a governmental "unit" and dismissed the
appeal for lack of jurisdiction. The First Court of Appeals in Houston, however, took the opposite position in De Miño v. Sheridan, 176 S.
W.3d 359 (Tex.App.--Houston [1st Dist.] 2004, no pet.), holding that suit against the University's Provost was suit against the
governmental unit (the University of Houston), and proceeded to decide the issues presented in that interlocutory appeal. Another court
of appeals has held that interlocutory appeals are only authorized for pleas filed by officials whose office is established by the
constitution. The Supreme Court is likely to resolve the three-way split among the courts of appeals on this important issue of statutory
construction this year or next.

Is a party entitled to a ruling when its pleadings are challenged as insufficient to invoke the trial court’s
jurisdiction, or must the party amend after a the governmental unit has filed a jurisdictional plea, in order
to avoid dismissal?

In Texas Department of Transportation v. Ramirez, the Court observed: A plaintiff has a right to amend her pleadings to attempt to cure
pleading defects if she has not alleged enough jurisdictional facts. However, if it is impossible to amend the pleadings to invoke
jurisdiction, the trial court should dismiss the plaintiff’s suit. 74 S.W.3d 864, 867 (Tex. 2002). In Texas A & M Univ. Sys. v. Koseoglu, the
University urges the Supreme Court to render a judgment of dismissal arguing that the Plaintiff had four months to decide to amend in
face of the University's plea to the jurisdiction, and failed to do so. The Tenth Court of Appeals held that remand to the trial court was
proper to allow Koseoglu to amend his pleading and try to state a viable claim not barred by sovereign immunity. The University does
not address the difficulty of obtaining a legislative resolution waiving the University's immunity from suit within that time frame, but
simply asserts that the jurisdictional defect in Koseoglu's petition is incurable, and any remand thus futile and a waste of private and
judicial resources.

Oct. 27, 2006 - Texas Supreme Court holds that party must be given opportunity to amend when pleadings challenged by special
exceptions, citing Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). See 06-0201 Parker v. Barefield (Tex. Oct. 27, 2006)(per
curiam). Whether this applies in the sovereign immunity context, however, remains unanswered.

-------------------------------------------------------------------------------------------------------------------------------------------------
University of Houston: Are employment contracts enforceable? - No

Supreme Court No. 05-0243   WOLFGANG HIRCZY DE MINO, PH.D. V. THE UNIVERSITY OF HOUSTON
On Plaintiff's Petition for Review from the Third Court of Appeals in Austin
Hirczy de Mino v. Univ. of Houston, 2004 Tex. App. LEXIS 9045, No. 03-03-00311-CV,
2004 WL 2296131 (Tex. App.--Austin Oct. 14, 2004, pet denied June 30, 2006) (mem. op.)
No. 05-0243 Petitioner's Brief on the Merits in the Supreme Court

Issues presented:

Statutory waiver: Does “sue and be sue” language in the Texas Education Code §111.33 waive the university’s
immunity to breach-of-contract claims? See Freedman v. Univ. of Houston, 110 S.W.3d (Tex.App.--Houston [1st
Dist.], 2003, no pet.)(immunity not waived)

Decision: The Supreme Court denied review in this case on June 30, 2006 but held in its watershed immunity
opinion released the same day that Tex. Educ Code Section 111.33 does not waive sovereign immunity.
See Tooke v. City of Mexia, No. 03-0878 (Tex. June 30, 2006)

Waiver-by-conduct: Did the University of Houston (UH) waive its immunity from suit for breach of contract where the
University failed to disclose that it invokes immunity to “resolve” contract disputes?

No Decision: The Supreme Court did not reach this issue in the sovereign immunity appeals disposed of on June
30, 2006, but may soon be asked to decide it in a case from the same court that handed down the immunity holding
that the Supreme Court adopted in Tooke v. City of Mexia,and the companion cases (see elsewhere on this page).
See T exas Southern University v. State Street Ban and Trust Company (Tex.App.-Houston [1st Dist.] June 8, 2006)
(plurality op. by Hanks)(recognizing waiver-by-conduct theory in commercial contracting context)

Constitutionality of the sovereign immunity doctrine: Does the Austin Court of Appeal’s holding that U of H is
immune to breach of contract suits violate the Equal Protection Clause of the Fourteenth Amendment, and the
equality guarantees of the Texas Constitution? Tex. const., art I, section 3, 3a.

No Decision: Because the Texas Supreme Court's recent immunity holdings -- and its rejection of previous
precedent in MoPac -- merely construe state statutes or charters and merely change the state's common law, the
equal protection argument may be the only basis for seeking review by the U.S. Supreme Court.

-------------------------------------------------------------------------------------------------------------------------------------------------
Community Colleges and School Districts: Can contractors take them to court?

Columbus ISD v. Five Oaks Achievement Ctr., No. 05-0414 (Tex. June 30, 2006)
Columbus Indep. Sch. Dist. v. Five Oaks Achievement Ctr., No. 14-04-00129-CV 162 S.W.3d 812 (Tex. App.--
Houston [14th Dist.] 2005, pet. filed)(holding that "sue and be sued" language in Tex. Educ. Code 11.151 constitutes
clear and unambiguous waiver of immunity to suit; did not reach merits of waiver by conduct argument). Supreme
Court Cause No. 05-0414 (briefs)

Satterfield v. Irving I.S.D., No. 04-0175 (Tex. June 30, 2006)
Satterfield & Pontikes Const., Inc. v. Irving Indep. Sch. Dist., Dissent, No. 05-03-00004-CV, 123 S.W.3d 63 (Tex. App.
--Dallas 2003, pet. filed) (holding "sue and be sued" language of the Education Code does not clearly and
unambiguously waive school district's immunity from suit). Supreme Court Cause No. 04-0175 (amicus brief) The
Texas Association of School Boards' Legal Assistance Fund Amicus Curiae, The Surety Association of America
Amicus Curiae, Texas Building Branch of the Associated General Contractors of America Amicus Curiae, Premier
Systems, Inc. Amicus Curiae, Texas State Teachers Association Amicus Curiae.

Alamo Cmty. Coll. Dist. v. Browning Constr. Co., No. 04-02-00808-CV, 131 S.W.3d 146 (Tex. App.--San Antonio
2004, pet. filed)(holding "sue and be sued" language in Education Code clearly and unambiguously waives immunity
from suit). Supreme Court Cause No. 04-0276 (amicus brief)
Status: Joint motion to dismiss granted 4/28/06

Bates v. Tex. State Tech. Coll., No. 10-97-00305-CV, 983 S.W.2d 821 (Tex. App.--Waco 1998, pet. denied) (holding
college's immunity from suit waived because Education Code Section 135.55 provides that college board "may sue,
and may be sued"). Supreme Court Cause No 99-0348

San Antonio Indep. Sch. Dist. v. City of San Antonio, 2004 Tex. App. LEXIS 11910, No. 04-03-00835-CV, 2004 WL
2450919 (Tex. App.--San Antonio Nov. 3, 2004, pet. filed) (mem. op.) (holding language in section 11.151(a) of the
Education Code stating the trustees of an independent school district may "sue and be sued" was a clear and
unambiguous waiver of the district's immunity from suit)(distinguishing Freedman v. Univ. of Houston). Supreme Court
Cause No. 04-1115 (briefs) Status: Motion to withdraw filed 8/3/2005

Welch v. Coca-Cola Enters., No.12-99-00204-CV, 36 S.W.3d 532 (Tex. App.--Tyler 2000, pet. withdrawn) (holding
immunity from suit waived because Education Code provides school district trustees may "sue and be sued")
-------------------------------------------------------------------------------------------------------------------------------------------------

City of Houston: Does "sue and be sued" provision in city charter waive immunity?
(Stated differently: Can the City get away with stiffing its contractors?)

No 04-0406 T he City of Houston v. Clear Channel Outdoor, Inc., No. 04-0406 (Tex 2006)
(Supreme Court B riefs)
Opinion below: City of Houston v. Clear Channel Outdoor, Inc., No. 14-03-00022-CV 161 S.W.3d 3 (Tex. App.--
Houston [14th Dist.] 2004, pet. filed 4/29/2004)(declined to follow Jackson v. City of Galveston, 837 S.W.2d 868 (Tex.
App.--Houston [14th Dist.] 1992, writ denied).

Docket No 04-1021 T he City of Houston v. Boyer, Inc., No. 04-1021 (Tex. 2006)
(Supreme Court B riefs)
Opinion below: City o f Houston v. Boyer, Inc., 2004 Tex. App. LEXIS 8785, No. 01-04-00153-CV, 2004 WL 2186770
(Tex. App.--Houston [1st Dist.] Sep. 30, 2004, pet. filed 11/16/04) (mem. op.)(citing United Water)

Docket No 04-0879 C ity of Houston v. Kenneth S. Jones. No. 04-0465 (Tex 2006)
(Supreme Court B riefs)
Opinion below: City of Houston v. Jones, 2004 Tex. App. LEXIS 7493, No. 01-03-00831-CV, 2004 WL 1847965 (Tex.
App.--Houston [1st Dist.] Aug. 19, 2004, pet. filed 10/04/2004) (mem. op. on reh'g)

Docket No 04-0730 City of Houston v. Allco, Inc. No. 04-0730 (Tex. June 30, 2006)
Opinion below: City of Houston. Allco, Inc. 2004 Tex. App. LEXIS 5934, 2004 WL 1471818, No. 01-02-00812-CV (Tex.
App.--Houston [1st Dist.] July 1, 2004)

Docket No 04-0547 CITY OF HOUSTON V. UNITED WATER SERVICES, INC. (briefs)
United Water Servs., Inc. v. City of Houston, No. 01-02-01057-CV, 137 S.W.3d 747 (Tex. App.--Houston [1st Dist.]
2004, pet. filed 6/14/2004)

Docket No 04-0465 T he C ity of Houston v. Jackson No. 04-0465 (Tex. 2006) (briefs)
Opinion below: Jackson v. City of Houston, No. 01-02-00879-CV (Tex.App.--Houston [1st Dist.] April 1, 2004,
reversed and rendered) History: pet filed 5/17/04, granted, and opinion issued 4/7/2006)

Docket No 05-0824 THE CITY OF HOUSTON V. THE BURLINGTON NORTHERN RAILROAD
Burlington N. & Santa Fe Ry. Co. v. City of Houston, 2005 Tex. App. LEXIS 3632, No. 14-03-01311-CV, 2005 WL
1118121 (Tex. App.--Houston [14th Dist.] May 12, 2005, pet filed 10/3/05) Status: apparently withdrawn.

-------------------------------------------------------------------------------------------------------------------------------------------------

Other cities and entities: Does power to "sue and be sued" mean what it says?

Tooke v. City of Mexia No. 03-0878 (Tex. June 30, 2006)("sue and be sued" language in
statute or charter does not constitute a waiver of sovereign immunity)
City of Mexia v. Tooke, No. 10-02-00261-CV, 115 S.W.3d 618 (Tex. App.--Waco 2003, pet. granted) (holding that
language indicating the city can "plead and be impleaded" does not constitute clear and unambiguous waiver of
immunity from suit, but recognizing that "sue and be sued" language provides the "requisite clarity to establish a
waiver of immunity from suit"). Supreme Court Cause No. 03-0878 (petition granted, oral argument held, brief s
posted). Oral argument held 4/21/2004. Status: Opinion released June 30, 2006)

Reata Constr. Corp. v. City of Dallas, No. 02-1031(Tex. June 30, 2006)(City charter
language stating that City may be sued did not waive its governmental immunity; City’s
intervention and in pending suit and assertion of claims for affirmative relief did)
City of Dallas v. Reata Constr. Corp., No. 05-01-01780-CV, 83 S.W.3d 392 (Tex. App.--Dallas 2002) (explaining that
"sue and be sued" language refers to a city's capacity to sue when immunity has otherwise been waived), rev'd on
other grounds, No. 02-1031, 47 Tex. Sup. Ct. J. 408, 2004 WL 726906 (Tex. April 2, 2004). Supreme Court Cause
No. 02-1031(motion for rehearing granted, oral argument held, briefs posted).
Oral argument held 12/2/2004. Status: Opinion handed down June 30, 2006

McMahon Contracting, L.P. v. City of Carrollton, No. 04-0622 (Tex. June 30, 2006)
City of Carrollton v. McMahon Contracting, L.P., No. 05-04-00089-CV 134 S.W.3d 925 (Tex. App.--Dallas 2004, pet.
filed) (concluding that "plead and be impleaded" language in Local Government Code does not waive immunity from
suit). Supreme Court Cause No. 04-0622

PKG Contracting, Inc. v. City of Mesquite, No. 04-1139 (Tex. June 30, 2006)
City of Mesquite v. PKG Contracting, Inc., No. 05-04-00169-CV, 148 S.W.3d 209 (Tex. App.--Dallas 2004, pet. filed).
Supreme Court Cause No. 04-1139 (eb riefs)

Metro. Transit Auth. v. MEB Eng'g, Inc., 2004 Tex. App. LEXIS 6358, No. 01-04-00022-CV, 2004 WL 1584958 (Tex.
App.--Houston [1st Dist.] July 15, 2004, pet. filed) (mem. op.)(holding Transportation Code section providing that
transit authority may "sue and be sued" waives governmental immunity from suit under Missouri Pacific, 453 S.W.2d
812 (Tex. 1970)). Supreme Court Cause No. 04-0757 (briefs)
Status: Petitioner brief on the merits due 5/25/2006
Numerous amici: City of Houston Amicus Curiae, United Water Services Inc. Amicus Curiae, State of Texas Amicus
Curiae, Harris County Flood Control District Amicus Curiae, The State of Texas Amicus Curiae, Arrendondo, Mr.
Anthony Amicus Curiae, Martin, Mr. David S. Amicus Curiae, Parker, Mr. George G. Amicus Curiae, Texas A&M
University System Amicus Curiae, The Texas Association of School Boards' Legal Assistance Fund Amicus Curiae

City of Lubbock v. Adams, No. 07-03-00042-CV, 149 S.W.3d 820 (Tex. App.--Amarillo 2004, pet. filed) (holding "sue
and be sued" in a city charter waives immunity from suit in accordance with Missouri Pacific and majority of courts of
appeals' decisions). Supreme Court Cause No. 05-0065 (e-b rie f s posted, amici)

City of Texarkana v. City of New Boston, No. 06-04-00023-CV, 141 S.W.3d 778 (Tex. App.--Texarkana 2004, pet.
dism'd) (finding the words "plead and be impleaded" in section 51.075 of the Local Government Code are
synonymous with "sue and be sued" and that they "waive governmental immunity from suit in light of the Texas
Supreme Court's decision in Missouri Pacific"). Supreme Court Cause No. 04-0797 (amicus)

Goerlitz v. City of Midland, No. 08-02-00087-CV, 101 S.W.3d 573 (Tex. App.--El Paso 2003, pet. filed) (explaining
that immunity from suit was waived where city charter provided the city may "sue and be sued"). Supreme Court
Cause No. 03-0185 (amici)

City of San Antonio v. Butler, No. 04-02-00811-CV, 131 S.W.3d 170 (Tex. App.--San Antonio 2004, pet. filed)
(holding that "plead and be impleaded" language in Local Government Code and "sue and be sued" language in city
charter do not waive immunity from suit in tort cases because they are governed by the Texas Tort Claims Act).
Supreme Court Cause No. 04-0356

Tomball Regional Hospital v. Harris County Hospital District, No. 14-04-00263-CV, 178 S.W.3d 244 (Tex.App.--
Houston [14th Dist.] 2005, pet filed 11/21/2005)(holding that "sue and be sued" language constitutes unambiguous
waiver of immunity to suit) Supreme Court Cause No. 05-0986 (ebriefs)
Status: Briefing on the merits requested 4/25/2006; record requested 4/27/2006; case record filed 5/4/2006

-------------------------------------------------------------------------------------------------------------------------------------------------

Other decided sovereign immunity cases with opinions
(links to docket, Court of Appeals' opinion & Supreme Court opinion)

04-0460 State of Texas v. Shumake (Tex. June 23, 2006)
C oncurring opinion by Justice Wainwrigh t
D issenting opinio n by Justice Brister

03-0448 05/22/2003    G
TEXAS A & M UNIVERSITY V. PAUL A. BISHOP              BISHOP Sup Ct Opinion

03-0827 09/11/2003    G
THE UNIVERSITY OF TEXAS V. KEVIN BARRETT, M.D. BARRETT Sup Ct Opinion

04-0890 filed 10/07/2004; Petition for review granted Jan 20, 2006, Oral argument Feb. 16, 2006
CITY OF GALVESTON V. STATE OF TEXAS
City of Galveston v. State of Texas, No. 04-0890 (Tex. Mar. 2, 2007)(Brister)

-------------------------------------------------------------------------------------------------------------------------------------------------

Additional cases of interest

05-0590 filed 07/29/2005
MY-TECH, INC. V. UNIV OF NORTH TEXAS HEALTH SCI . CTR ET AL
Pe tition for Review    Briefs
Opinion below: 166 S.W.3d 880 (Tex.App--Dallas 2005)

05-0594 filed 07/28/2005
UTMB GALVESTON V. THE ESTATE OF DARLA BLACKMON

05-0661 filed 08/17/2005
FKM PARTNERSHIP, LTD V. BOARD OF REGENTS OF THE UNIV. OF HOUSTON
Status: Numerous motions for extension filed and granted

04-0515 filed 06/02/2004
STEPHEN F. AUSTIN STATE UNIV V. DIANE FLYNN

Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).

==========================================================================================
H ome Page | The Evolving Sovereign Immunity Doctrine in Texas | Rights of Faculty in Texas
Texas Supreme Court Cases Involving Universities | The University of Houston i n Court
Recent Fifth Circuit Cases Affecting Faculty Members