DISSENTING OPINION ON MOTION FOR REHEARING
GONZALEZ, Justice.The City asserts that the mandamus relief granted by the Court is inappropriate,1 that the Court has usurped the City Council’s responsibility for creating classified positions,2 and that the Court erred in *655awarding attorney’s fees because this issue was not before the Court. Each of these points is meritorious and most reasonably minded people, particularly the residents of the City of Houston who have been treated unfairly by this majority and who have to foot the bill for the majority’s extraordinary and unprecedented decision, should be concerned and outraged. The majority creates uncertainty by failing to follow the law regarding standards for issuance of mandamus and the law of the case doctrine. Furthermore, to add insult to injury, the majority refuses to explain why the City has to pay attorney’s fees when it was, without question, acting in a governmental capacity.3
All of tfie points raised by the City with the exception of the attorney’s fees issue have been adequately addressed in my pri- or opinion. However, the irregular and illegal manner in which the majority has treated the attorney’s fees issue requires further elaboration.
The City raised the trial court’s award of attorney’s fees as a point of error in the court of appeals. The court of appeals noted that the City was acting in a governmental capacity and held that the City’s governmental immunity from liability for attorney’s fees had not been waived. 762 S.W.2d 180, 188.4 Relators sought review of this issue in the application for writ of error in Lee /, but we did not grant on that point and the Lee I opinion did not mention, much less award, attorney’s fees. Thus, arguably, the court of appeals’ holding on attorney’s fees is the law of the case. See Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex.1978); Cobb v. Robertson, 99 Tex. 138, 87 S.W. 1148, 1149 (1905). Although the application of this doctrine is left to the discretion of this Court, the majority refuses to explain procedurally how it reached the attorney’s fees issue in a writ of mandamus context. The majority also refuses to explain to the people of Houston, the bench and the bar why the doctrine of law of the case does not govern this issue, and more importantly, why recovery of attorney’s fees from the City is not barred by the doctrine of governmental immunity.
PHILLIPS, C.J., and HECHT and CORNYN, JJ., join this opinion.. Mandamus is available only when a trial court clearly abuses its discretion and there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-43 (Tex.1992). For the reasons explained in my prior opinion in this case, Relators did not meet their burden of showing that Judge Downey clearly abused his discretion nor did they establish why an ordinary appeal was inadequate.
. The Act in question assigns to the City Council the responsibility of establishing civil service classifications and prescribing the number of positions in each classification. Tbx.Loc.Gov’t Code § 143.021(a). The majority has usurped the law by ostensibly creating classified positions into which Relators must be promoted. Cf. Lewis v. City of Fort Worth, 89 S.W.2d 975, 978 (Tex.1936) ("a court has no right to substitute its judgment and discretion for the judgment and discretion of the governing body upon whom the law visits the primary power and duty to act. Of course, if such governing body acts illegally, unreasonably, or arbitrarily, a court of competent jurisdiction may so adjudge, but there the power of the court ends.”) See Caption of H.B. 79, Act of May 22, 1957, 55th Leg., R.S., ch. 391, 1957 Tex.Gen.Laws 1171 (amending Tex.Rev.Civ.Stat.Ann. art. 1269, § 12, the predecessor to Tex.Loc.Gov’t Code § 143.-021(a).
. The operation of a police department is governmental function. See Burnett v. City of Houston, 442 S.W.2d 919, 920 (Tex.Civ.App.— Houston [14th Dist.] 1969, writ ref'd).
. Relators’ argument for attorney's fees was based on statutory waiver of sovereign immunity. For the Legislature to waive the State’s sovereign immunity, it must do so in clear and unambiguous language. Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980); Waugh v. City of Dallas, 814 S.W.2d 492, 497 (Tex.App.—Dallas 1991, writ denied). The Declaratory Judgment Act contains no explicit waiver of sovereign immunity, such as those found in the Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. §§ 101.-001-.109, and the Whistleblower’s Act, Tex.Rev. Civ.Stat.Ann. Art. 6252-16a. Thus, the court of appeals correctly held that sovereign immunity had not been waived.