Opinion issued August 30, 2007
In=20 The
For=20 The
PRISCILLA D. SLADE,=20
Appellant TEXAS =
SOUTHERN=20
UNIVERSITY BOARD OF REGENTS, Appellee
On =
Appeal from the=20
61st District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2006-26759
O P I N =
I O=20
N This is an interlocutory appeal =
from the=20
trial court's order granting a plea to the jurisdiction. =
See Tex.=20
Civ. Prac. & Rem. Code Ann. =A7 51.014(a)(8) (Vernon Supp. =
2006).=20
Appellant Priscilla D. Slade sued both appellee Texas Southern =
University=20
Board of Regents and an individual regent, William King, for =
allegedly=20
breaching her employment contract. Slade claimed she was not given =
a=20
hearing to contest the Board's decision to terminate her for cause =
as=20
university president. The Board filed a plea to the jurisdiction,=20
asserting sovereign immunity and the absence of a justiciable =
controversy.=20
The trial court granted the Board's plea to the jurisdiction, =
thereby=20
dismissing all of Slade's claims against the Board. We =
affirm. Slade signed an employment =
contract with=20
Texas Southern University in 2003 to serve as the University's =
president=20
and chief executive officer. On April 17, 2006, after being =
presented with=20
evidence of Slade's alleged financial misconduct, the Board =
elected to=20
terminate Slade's employment as president. Two days later, Slade =
invoked a=20
clause in her employment contract entitling her to a public =
hearing prior=20
to her termination. On April 22, the Board issued a written =
acknowledgment=20
of Slade's contractual right to a termination hearing, and on May =
5, the=20
Board set the hearing for a date thirty days later, giving Slade =
proper=20
notice of the time and place of the hearing. The hearing was set for, and =
subsequently=20
held on, June 7. Despite her own request for the public hearing, =
Slade=20
failed to appear. At the conclusion of the June 7 =
hearing,=20
the Board voted to terminate Slade's employment as president. A =
plea to=20
the jurisdiction is a dilatory action that seeks dismissal of a =
case for=20
lack of subject-matter jurisdiction. Bland Indep. Sch. Dist. =
v.=20
Blue, 34 S.W.3d 547, 554 (Tex. 2000). A trial court must have =
subject-matter jurisdiction in order to adjudicate a case. =
See,=20
e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, =
928 (Tex.=20
1998). Sovereign immunity from suit bars an action against the =
State,=20
depriving the trial court of subject-matter jurisdiction, unless =
the State=20
expressly consents to the suit. Tex. Dep't of Transp. v. =
Jones, 8=20
S.W.3d 636, 638-39 (Tex. 1999). Because subject-matter =
jurisdiction is a=20
question of law, we review a trial court's decision to grant a =
plea to the=20
jurisdiction de novo. Tex. Dep't of Parks & Wildlife v.=20
Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also =
Tex.=20
Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, =
855 (Tex.=20
2002). When reviewing a trial court's =
ruling on=20
a plea to the jurisdiction, we construe the pleadings liberally in =
the=20
plaintiff's favor and look to the pleader's intent. =
Miranda, 133=20
S.W.3d at 226. If the pleadings affirmatively negate the existence =
of=20
jurisdiction, then a plea to the jurisdiction may be granted =
without=20
allowing the plaintiff an opportunity to amend. County of =
Cameron v.=20
Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the evidence =
creates a fact=20
question regarding a jurisdictional issue, then the trial court =
should not=20
grant the plea until the fact issue is resolved. Miranda, =
133=20
S.W.3d at 227-28. If the relevant evidence is undisputed or fails =
to raise=20
a fact question on the jurisdictional issue, then the trial court =
should=20
rule on the plea as a matter of law. Id. at 228. If no =
evidence=20
is submitted, however, the court reviews the petition to determine =
if=20
sufficient facts were pleaded to overcome the presumption of =
governmental=20
immunity. See City of Pasadena v. Thomas, No.=20
01-05-00333-CV, slip op. at 4 (Tex. App.--Houston [1st Dist.] =
2006, no=20
pet.). Sovereign immunity protects the =
State of=20
Texas, its agencies, and its officials from lawsuits for damages, =
absent=20
legislative consent to sue the State. See Dir. of =
Dep't of=20
Agric. & Env't v. Printing Indus. Ass'n of Tex., 600 =
S.W.2d 264,=20
265 (Tex. 1980). This immunity extends to various divisions of =
state=20
government, including universities. Tooke v. City of =
Mexia, 197=20
S.W.3d 325, 330 n.11 (Tex. 2006); Wichita Falls State Hosp. v. =
Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Sovereign =
immunity=20
encompasses two distinct types of immunities: immunity from suit =
and=20
immunity from liability. Mo. Pac. R.R. Co. v. Brownsville =
Navigation=20
Dist., 453 S.W.2d 812, 813 (Tex. 1970), overruled on =
other=20
grounds by Tooke, 197 S.W.3d 325. Immunity from suit =
bars=20
any suit against the State that the State has not expressly =
consented to=20
by legislative action. IT-Davy, 74 S.W.3d at 853. =
Immunity from=20
liability protects the State from money judgments even if the =
legislature=20
has expressly given consent to sue. Id. It is the =
Legislature's=20
sole province to waive or abrogate sovereign immunity. Fed. =
Sign v.=20
Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997). As an arm of the State, Texas =
Southern's=20
Board of Regents is entitled to sovereign immunity. Therefore, =
Slade=20
cannot sue the Board without showing legislative consent or =
waiver.=20
Sovereign immunity does not, however, mean that the State can =
freely=20
breach contracts with private parties. IT-Davy, 74 S.W.3d =
at 854.=20
When the State contracts with a private party, it waives immunity =
from=20
liability on those contracts as if it were a private party. =
Gen.=20
Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, =
594 (Tex.=20
2001), overruled on other grounds by Miranda, =
133 S.W.3d=20
217; Fed. Sign, 951 S.W.2d at 405. However, in any suit =
against=20
the State, the plaintiff must affirmatively demonstrate the =
court's=20
subject-matter jurisdiction by alleging a valid waiver of =
immunity.=20
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 =
(Tex.=20
2003). Slade argues that the Board =
waived its=20
sovereign immunity by engaging in inequitable conduct. =
Specifically, Slade=20
claims that the Board and regent King, individually, "made =
accusations"=20
about her "without proof . . . or any substantiation," "released =
to the=20
media a report that was misleading and calculated to create an =
impression=20
of wrongdoing," "threatened during a board meeting that [Slade] =
will never=20
work again as a university president," and began the search for a =
new=20
president before she was given "any opportunity to be heard." =
Slade=20
contends that her right to be heard was denied by these actions, =
which she=20
claims amount to inequitable conduct on the part of the =
Board. Slade bases her =
inequitable-conduct=20
argument on Justice Hecht's concurring opinion in Federal =
Sign.=20
See Fed. Sign, 951 S.W.2d at 412 (Hecht, J.,=20
concurring). Federal Sign, however, and specifically =
Justice=20
Hecht's concurrence, do not control the outcome in this case. =
Justice=20
Hecht made clear in Federal Sign that the court was "not=20
attempt[ing] to decide . . . hypotheticals" as to what kind of =
conduct=20
related to a contract dispute would amount to inequitable conduct. =
Id. Rather, the court held only that mere execution of a =
contract=20
does not waive immunity. Id. at 413. The Texas Supreme Court has =
addressed the=20
waiver-by-conduct exception since Federal Sign, and it =
has=20
refused both to define the scope of those hypotheticals and to =
create an=20
explicit waiver-by-conduct exception to sovereign immunity. In Travis County v. Pelzel =
&=20
Associates, Inc., the supreme court rejected the =
waiver-by-conduct=20
theory in a construction contract case. 77 S.W.3d 246, 252 (Tex. =
2002).=20
The supreme court held that "[w]hen a governmental unit adjusts a =
contract=20
price according to the contract's express terms, it does not, by =
its=20
conduct, waive immunity from suit, even if the propriety of the =
adjustment=20
is disputed." Id. Travis County invoked a liquidated =
damages=20
clause contained in the contract it held with Pelzel, which =
entitled the=20
county to withhold a portion of the contract price. Id. =
The court=20
refused to adopt a waiver-by-conduct exception when the immune =
entity=20
merely invoked and complied with the terms of the contract.=20
Id. Slade points to language in =
Catalina=20
Development, Inc. v. County of El Paso, to support her =
proposition=20
that Federal Sign established a waiver-by-conduct =
exception to=20
sovereign immunity. 121 S.W.3d 704 (Tex. 2003). She argues that =
one clause=20
in the Catalina opinion recognizes that a such a waiver =
exists:=20
"Although in Federal Sign we suggested that some =
circumstances=20
might warrant recognizing a waiver by conduct." Id. at =
706.=20
However, the supreme court went on to conclude that the =
circumstances=20
suggested in Federal Sign that might warrant such an =
exception=20
"[did] not exist under this set of facts." Id. We do not=20
interpret this language as recognition by the supreme court that a =
waiver-by-conduct exception to sovereign immunity exists in light =
of other=20
decisions to the contrary. Slade also points to the =
supreme court's=20
opinion in Texas A&M University-Kingsville v. Lawson =
and this=20
Court's opinion in Texas Southern University v. State Street =
Bank=20
& Trust to support her argument that a waiver-by-conduct=20
exception should be applied. Tex. A&M =
Univ.-Kingsville, 87=20
S.W.3d 518 (Tex. 2002); Tex. S. Univ. v. State St. Bank &=20
Trust, 212 S.W.3d 893 (Tex. App.--Houston [1st Dist.] 2007, =
pets.=20
denied). Neither opinion supports appellant's argument, because =
each was=20
significantly factually different from this case. In =
Lawson, the=20
supreme court adopted a specific exception to immunity from suit =
in=20
breach-of-contract cases: When the State settles a claim from =
which it=20
does not have immunity, sovereign immunity from suit does not =
protect the=20
State from a breach-of-contract action to the settlement =
agreement.=20
Lawson, 87 S.W.3d at 518. In State Street, this =
Court held=20
that the State was not immune from suit due to the "extraordinary =
factual=20
circumstances" found in that case. State St., 212 S.W.3d =
at 907.=20
There, Texas Southern University entered into a contract in which =
it=20
agreed to pay approximately $13 million for equipment and =
services.=20
Id. at 908. After it had received the equipment and =
services,=20
Texas Southern refused to pay, claiming that the contracts were =
invalid.=20
Id. This Court held that sovereign immunity from suit did =
not=20
shield Texas Southern from a breach-of-contract claim based on =
those facts=20
and the following argument by one of the plaintiffs: [T]he injustice is even worse =
[than the=20
facts found by the trial court], because this case also includes =
an=20
additional fact that appears in none of the prior cases: The =
government=20
officials lured [plaintiff] into the Master Lease with false =
promises that=20
the contract would be valid and enforceable, then disclaimed any=20
obligation on the contract by taking the position that the =
contract was=20
not valid after all. Id. In Slade's case, however, it is =
undisputed that the contract between Slade and Texas Southern was =
valid=20
and enforceable. Furthermore, the Board is neither avoiding =
enforcement of=20
a settlement claim, nor is it claiming that the contract is not =
valid.=20
While Slade has pleaded facts that could conceivably result in a =
holding=20
on the merits that the Board or an individual regent breached her=20
employment contract, there is nothing in the facts she has pleaded =
that=20
rise to the level of the "extraordinary factual circumstances" =
found in=20
State Street. Like IT-Davy and =
Pelzel=20
& Associates, and unlike the "extraordinary =
circumstances" of=20
State Street, Slade's case is an ordinary contract =
dispute.=20
See IT-Davy, 74 S.W.3d at 861 (Hecht, J., =
concurring);=20
see Pelzel & Assocs., 77 S.W.3d at 252. =
While we=20
recognize the harsh reality of sovereign immunity from suit, we =
hold that=20
the waiver-by-conduct exception does not apply in this =
case. Alternatively, Slade argues =
that even if=20
the Board has not waived its sovereign immunity from suit, =
nonetheless her=20
request for declaratory relief is not barred. The supreme court =
has=20
enumerated two scenarios in which private parties may attempt to =
bring=20
declaratory actions against the State. See =
IT-Davy, 74=20
S.W.3d at 855-56. In the first, private parties can sue for a =
declaratory=20
judgment against state officials who allegedly act without legal =
or=20
statutory authority. Id. at 855. These actions are suits =
to=20
compel state officers to act within their official capacity and =
are not=20
considered to be suits against the State. Id. Therefore, =
these=20
suits do not implicate the sovereign-immunity doctrine. =
Id. In=20
the second, private parties may attempt to sue the State for a =
declaratory=20
judgment seeking to establish a contract's validity, to enforce=20
performance under a contract, or to impose contractual =
liabilities.=20
Id. at 855-56. These types of suits are considered suits =
against=20
the State because they seek to control state action or impose =
liability on=20
the State. Id. Consequently, these actions may not be =
maintained=20
without express legislative permission. Id. at =
856. It is the second type of =
declaratory=20
action under which Slade's claims fall. Slade asks this Court to =
compel=20
performance by the Board based on her employment contract. =
Specifically,=20
she seeks a declaration that she is entitled to an opportunity to =
appear=20
before the Board in a public hearing prior to her termination =
being made=20
final. This action would clearly be declaratory relief to enforce=20
performance under a contract with the State. See=20
IT-Davy, 74 S.W.3d at 855-56. Consequently, it is barred =
by the=20
State's immunity and cannot be maintained absent express =
legislative=20
consent. Id. Finally, Slade argues that the =
trial=20
court erred in granting the Board's plea to the jurisdiction =
because of=20
mootness. In light of our holding that the Board is immune from =
Slade's=20
suit, it is unnecessary to reach the mootness question. We affirm the trial court's =
order=20
granting the Board's plea to the jurisdiction. Sam Nuchia Justice Panel consists of Justices =
Nuchia, Keyes,=20
and Higley.=20
1. See Catalina Dev., Inc. v. =
County of=20
El Paso, 121 S.W.3d 704 (Tex. 2003); Tex. A&M=20
Univ.-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002); =
Travis=20
County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002);=20
IT-Davy, 74 S.W.3d 849; Little-Tex Insulation =
Co., 39=20
S.W.3d 591.=20
2. Because we hold that no waiver-by-conduct =
exception=20
exists in this case, we express no opinion of the merits of =
Slade's=20
breach-of-conduct claim or the conduct of any person involved in =
the=20
underlying =
dispute.