Opinion issued October 24, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00368-CV
____________
UNIVERSITY OF HOUSTON MAIN CAMPUS, Appellant
V.
STEVEN SIMONS, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 02-01038
O P I N I O N
Appellant, the University of Houston Main Campus ("the University"), brings an accelerated, interlocutory appeal from the trial court's denial of its plea to the jurisdiction. (1)
In its sole issue, the University argues that the trial court erred in denying its plea to the jurisdiction and in failing to dismiss all claims asserted by appellee, Steven Simons. We reverse the order of the trial court and render a judgment of dismissal without prejudice.
Facts and Procedural Background
Simons alleges that, in January 1998, he enrolled at the University as a graduate student, registered for classes, purchased a campus parking sticker for his car, signed a five-month on-campus housing contract, paid for his housing with a credit card, and moved into a dormitory.
Approximately one month later, campus police impounded his car and refused to have the car returned to the lot where it had been parked. Simons further alleges that, two months later, he was effectively evicted from his dormitory room when University representatives changed the lock on his door and retained possession of all his belongings left in the room. Simons claims that, when he subsequently requested a bill from the University itemizing his outstanding financial obligations, the University overcharged his account and included a collection fee.
Simons subsequently filed this lawsuit against the University, asserting causes of action for breach of contract, conversion, intentional infliction of emotional distress, fraud, and violations of the Deceptive Trade Practices-Consumer Protection Act (2) ("DTPA") and the Debt Collection Act. (3)
The University answered the lawsuit and filed a plea to the jurisdiction, asserting that, as a governmental entity, it was entitled to sovereign immunity from suit on Simons's claims. The trial court denied the University's plea.
Governmental Immunity (4)
Under the doctrine of governmental immunity, a unit of government may not be sued without consent. Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.--Houston [1st Dist.] 1999, pet. denied). The University is a "governmental unit" generally immune from tort liability, except when the legislature has specifically waived that immunity. Tex. Educ. Code Ann. § 111.01 (Vernon Supp. 2002); Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(D) (Vernon Supp. 2002); Clark v. Univ. of Houston, 60 S.W.3d 206, 209 (Tex. App.--Houston [14th Dist.] 2001, no pet.).
In the absence of a waiver of governmental immunity, a court has no jurisdiction to entertain a suit against a governmental unit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Li v. Univ. of Tex. Health Sci. Ctr., 984 S.W.2d 647, 654 (Tex. App.--Houston [14th Dist.] 1998, writ denied).
We address each of Simons's causes of action to determine whether the University's governmental immunity has been waived.
Intentional Tort Claims
The Texas Tort Claims Act ("the Act") provides a limited waiver of immunity for "governmental units." Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). This waiver does not extend to suits for intentional torts. Id. § 101.057(2) (Vernon 1997).
Simons's causes of action for conversion, fraud, and intentional infliction of emotional distress are intentional tort claims. See Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 356-57 (Tex. App.--San Antonio 2000, pet. denied) (conversion); Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.--Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (intentional infliction of emotional distress); Tex. S. Univ. v. Araserve Campus Dining Servs. of Tex., 981 S.W.2d 929, 935 (Tex. App.--Houston [1st Dist.] 1998, pet. denied) (fraud).
Because the Act does not waive the University's governmental immunity from suit for Simons's claims for conversion, fraud, and intentional infliction of emotional distress, we hold the trial court erred in not dismissing those claims for want of jurisdiction.
Breach of Contract Claim
Governmental immunity also protects governmental units from lawsuits for money damages unless the legislature expressly consents to the suit. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001). When a governmental unit contracts with a private citizen, it generally retains immunity from suit even though it waives immunity from liability. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 (Tex. 1997). Generally, a party seeking redress for breach of contract can establish legislative consent to sue by bringing suit under a special statute or obtaining a legislative resolution. Little Tex, 39 S.W.3d at 596; see Tex. Civ. Prac. & Rem. Code Ann. § 107.002 (Vernon 1997).
The record does not indicate, and Simons has not alleged, that he obtained legislative consent to sue the University for his breach of contract claim. Nor has he brought his cause of action under a special statutory provision waiving the University's immunity from suit. Accordingly, we hold the trial court erred in not dismissing Simon's breach of contract claim for want of jurisdiction.
Statutory Claims
In regard to Simons's causes of action for violations of the DTPA and the Debt Collection Act, we note that legislative consent to suit, whether expressed by statute or otherwise, must be "by clear and unambiguous language." Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 1997) ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.").
Neither the DTPA nor the Debt Collection Act clearly and unambiguously provides for a waiver of immunity from suit for governmental units. Accordingly, we hold the trial court erred in not dismissing Simon's statutory claims for want of jurisdiction.
Governmental Functions
On appeal, Simons argues that the trial court properly denied the University's plea to the jurisdiction because the Act provides a limited waiver of immunity from suit for governmental units when such entities engage in tortious conduct while performing "governmental" functions.
Simons relies on section 101.0215 of the Act, which provides a non-exclusive list of governmental functions performed by municipalities. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (Vernon Supp. 2002). However, section 101.0215 specifically applies only to municipalities and does not waive the University's immunity from suit.
Federal Claims
Finally, Simons contends that the University is not entitled to immunity from suit for violations of federal consumer protection laws and the United States Constitution and that his pleadings should be construed to raise such claims.
Simons's petition did not allege federal statutory claims or violations of federal laws or the United States Constitution; rather, he pleaded his causes of action as based on Texas statutes and common-law. Further, there is no indication that the trial court considered Simons's pleadings as based on federal law when it denied the University's plea to the jurisdiction. Therefore, we may not consider Simons's federal claims, raised for the first time on appeal.
We sustain the University's issue on appeal.
Conclusion
We reverse the order of the trial court denying the University's plea to the jurisdiction and render a judgment of dismissal, without prejudice, of all of Simons's causes of action.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Radack.
Do not publish. Tex. R. App. P. 47.
1. 2. 3. 4.