concurring.
Based upon the majority holding in General Services Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001), I respectfully concur in the decision here. I write today, however, to express my agreement with the reasoning found in Justice Enoch’s dissent in that case. Id. at 602-604 (Enoch, J., dissenting). His approach outlines the only rational one to the question of sovereign immunity and the State’s ability to contract. I agree that a contract which is not enforceable against the State, even where the State has accepted the benefits of its bargain, is simply not a contract at all. Id. at 602.
I also note that the majority’s reasoning in Little-Tex is based upon the availability of an administrative process under Tex. Gov’t Code Ann. § 2260 (Vernon 2000). Counties, including Defendant/Appellee El Paso County, are specifically exempted from the administrative process outlined there. Tex. Gov’t Code Ann. § 2260.001(4) (Vernon 2000). This leaves Appellant in an unhappy position: barred by sovereign immunity from pursuing his breach of contract claim, yet specifically excluded from the legislatively-designed remedial process. Nevertheless, this exemption was clearly not intended as a waiver of sovereign immunity for counties and other exempted units of State government, as the chapter specifically states “this chapter does not waive sovereign immunity to suit or liability.” Tex. Gov’t Code Ann. § 2260.006 (Vernon 2000).
Rather than adding to the byzantine construct which preserves the fiction that the sovereign can do no wrong, I would hold with Justice Enoch simply that a contracting party is hable for breach of that contract. If the contracting party is the State or any subdivision thereof, including the County of El Paso, the contract itself, together with the legislation that authorizes it, should be deemed a waiver of any sovereign immunity claims.
For these reasons, I concur in the judgment.