June 20, 1989
Honorable Dan Morales Opinion No. JM-1061
Chairman
Criminal Jurisprudence Committee Re: Whether the state
Texas House of Representatives may restrict its waiver
P. 0. Box 2910 of immunity (RQ-1662)
Austin, Texas 78768-2910
Dear Representative Morales:
YOU ask the following questions about waiver of
governmental immunity:
(1) Does the state possess the legal
authority to place any limitations or
restrictions upon its waivers of immunity?
(2) What is the appropriate legislative
vehicle for the legislature to utilize when
the state wishes to waive its immunity?
The following general discussion of governmental immunity
will provide answers to both of your questions.
There are two types of governmental immunity: immunity
from suit and immunity from liability. Adams v. Harris
Countv. 530 S.W.2d 606. 608 (Tex. Civ. App. - Houston [14th
Dist.] 1975), appeal dismissed, 429 U.S. 803 (1976). The
state may waive either type of immunity. A waiver of
immunity from suit does not, however, imply a waiver of
immunity from liability. State v. Isbell 94 S.W.2d 423,
425 (Tex. 1936). The Texas Tort Claims A& is an example of
a statute that offers a limited waiver from suit and
immunity from liability under certain circumstances. See
Civ. Prac. & Rem. Code §§ 101.021, 101.025.
The legislature has traditionally employed concurrent
resolutions to waive immunity from suit in individual
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Honorable Dan Morales - Page 2 (JM-1061)
cases.1 Co&ran Core. v. Bullock, 567 S.W.2d 616 (Tex. Civ.
App. - Austin 1978, no Writ). The Civil Practices and
Remedies Code now contains provisions governing resolutions
waiving state immunity from suit. Acts 1987, 70th Leg., ch.
524, at 2133 (codified as one of two chapter 107s of the
Civil Practices and Remedies Code). Section 107.002 of the
code sets out the effects of a resolution that grants a
person permission to sue the state. Section 107.003
provides:
(a) A resolution may grant permission to
sue the state only in accordance with this
chapter.
(b) A resolution may not alter the effect
of the permission as described by Section
107.002, except that a resolution may further
limit the relief to which the claimant may be
entitled.
Section 107.004 provides:
A resolution may specifically provide
additional conditions to which a grant of
permission to sue is subject.
See Trinitv River Auth. v. Williams, 689 S.W.2d 883, 885
(Tex. 1985)(holding that the state's waiver of sovereign
immunity can be made subject to restrictions and
conditions); see cenerallv Buford v. State 322 S.W.2d 366,
370 (Tex. Civ. App. - Austin), cert. den&d, 361 U.S. 837
(1959)(holding that statutes cannot be amended by
resolution).
Not only has the legislature used resolutions to waive
immunity from suit in individual cases, but it has also used
them to waive immunity from liability in individual cases.
See Comment, Governmental Immunitv from Suit and Liability
1. A resolution is used when the legislature wishes to
express an opinion as to a given matter or thing which is to
have a temporary effect. State v. Delesdenier, 7 Tex. 76,
94-96 (1851); Conlev v. Texas Div. of United Daushters of
the Confederacy, 164 S.W. 24, 26 (Tex. Civ. App. - Austin
1913, writ ref'd); see oenerally Comment, Lesislative
Resolutions: Their Function and Effect, 31 Tex. L. Rev. 417
(1953).
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Honorable Dan Morales - Page 3 (JM-1061)
in Texas, 27 Tex. L. Rev. 337 (1949); see also Civ. Prac. &
Rem. Code § 107.002(b)(providing that a resolution granting
permission to sue does not waive to any extent immunity from
liability). There are, however, serious questions about the
constitutionality of waiving immunity from liability in
individual cases. The courts have held that a resolution
waiving immunity from liability on behalf of an individual
violates both article III, section 56, and article I,
section 3, of the Texas Constitution.
Article III, section 56, prohibits the enactment of
special or local laws on specified subjects. Waiver of
governmental immunity is not among the subjects listed.
However, article III, section 56, also contains the
following proviso: "And in all other cases where a general
law can be made applicable, no local or special law shall be
enacted." In State Hicrhwav DeD't v. Gorham 162 S.W.2d 934
(Tex. 1942), the Texas Supreme Court heid that an act
granting an individual the privilege of bringing a suit
against the highway department violated article III, section
56. The court also held that the act at issue in Gorham
violated article I, section 3, the equal protection clause
of the Texas Constitution. The court held the act in
question invalid for several other reasons as well and did
not elaborate on its statements about article III, section
56, or article I, section 3.
Three years later, the supreme court cited Gorham for
the proposition that a waiver of liability in regard to an
individual would violate article I, section 3, of the Texas
Constitution. Martin v. SheDDard, 201 S.W.2d 810, 812 (Tex.
1947). The court did not mention article III, section 56.
See oenerally G. D. Braden, 1 The Constitution of the State
of Texas: An Annotated and Comparative Analysis 279
(1977)(guestioning the correctness of Gorham as an article
III, section 56, case). Although Martin v. SheDward was a
collection suit based on a judgment in a suit involving just
such a waiver, the court held that the judgment was not
subject to collateral attack because the court granting the
judgment had jurisdiction over the parties. In so holding,
the court wrote:
And, further, it is provided in Section 5
of the act that, if any paragraph, clause, or
provision thereof should be held to be
invalid or unconstitutional, the validity of
the other provisions of the act shall not be
affected thereby. Striking from the act the
third section [waiving the state's immunity
from liability], there remains an express
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Honorable Dan Morales - Page 4 (JM-1061)
permission granted to relators to bring suit
in the district court of Liberty County for
damages on account of the injuries sustained
by A. J. Martin which resulted in his death
and the further provision that process might
be served upon the Governor and Attorney
General. It cannot be ouestioned that the
leaislature had the power to orant relators
pm
the manner of service. By virtue of that act
and by the service of process and the
appearance ;iethe State through its Attorney
General, court clearly acquired
jurisdiction of the parties to the
litigation. (Emphasis added.)
Martin. subra, at 812. In other words, the court took the
position that it was within the legislature's power to grant
an individual permission to sue but that it was not within
the legislature's power to waive governmental immunity from
liability in regard to an individual. One could argue that
if a waiver of immunity from liability in regard to a single
individual is either an unconstitutional special law or a
violation of the equal protection clause, a waiver of
immunity from suit in regard to a single individual would
also be either an unconstitutional special law or a
violation of the equal protection clause. That was not,
however, the view of the Supreme Court in w. See State
v. Isbell, suwra, at 425; Adams v. Harris County, suora, at
608 (both expressly holding that consent to sue may be given
by concurrent resolution, but that waiver of immunity from
tort liability can be given only by general law); see also
Tho
:, as v. 333 F.Supp. 961 (D.
V. I. 1971), aff'd, 515 F.2d 507 (1975) (holding that waiver
of sovereign immunity on behalf of individual violates equal
protection clause of federal Constitution): Krause v. Ohio,
285 N.E.2d 736 (Ohio), vdismissed, 409 U.S. 1052
(1972) (holding that withholding remedy from some persons
injured by governmental torts but not from others does not
violate equal protection clause of federal Constitution);
Commercial Standard Fire & Marine Co. v. Commissioner of
Ins., 429 S.W.2d 930, 935 (Tex. Civ. App. - Austin 1968, no
writ); State v. McDonald, 220 S.W.2d 732 (Tex. Civ. App. -
Texarkana 1949, writ ref'd). The courts have held that a
resolution attempting to waive governmental immunity from
liabilitv on behalf of an individual is unconstitutional but
that a resolution waiving immunity from suit on behalf of an
individual is not.
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Honorable Dan Morales - Page 5 (JM-1061)
A resolution waiving immunity from tort liability2
after the tort has occurred has also been held to be
unconstitutional. In Matkins v. State, 123 S.W.Zd 953 (Tex.
Civ. App. - Beaumont 1939, writ dism'd judgmt car.), the
court held that a statute that is passed after the
commission of a tort and that attempts to recognize or
assume liability for the tort by the state violates article
III, section 44, of the Texas Constitution, which provides
that the state shall not pay a claim not provided for by
pre-existing law.
In summary, the answer to your first question is clear:
The legislature may place restrictions on a waiver of
immunity. Trinitv River Auth. v. Williams, suora, at 085.
The answer to your second question is more complex. The
legislature may waive immunity from suit either by a statute
of general application or by concurrent resolution. The
legislature may waive immunity from liability only by a
statute of general application. The constitution does not
permit the legislature to waive immunity from liability by
resolution applicable to an individual, nor does it permit
the legislature to waive immunity from liability after the
occurrence of the events that would give rise to liability.
SUMMARY
2. The state is liable on contracts as if it were a
private citizen. Therefore, the only impediment to a suit
against the state on a contract is the state's immunity from
suit. Texas Em wl ovment Comm'n v. Camarena; 710 S.W.2d 665,
671 (Tex. App. - Austin 1986), rev'd on other orounds, 754
S.W.2d 149 (Tex. 1988). Also, it has been suggested that
the state is not immune from liability when it acts in a
proprietary, rather than a governmental, capacity. State v.
Morcan, 170 S.W.2d 652, 653 (Tex. 1943). It has also been
suggested, however, that the state--in contrast to a
municipality-- acts only in a governmental capacity and, in
the absence of a valid waiver, enjoys immunity from
liability for all torts. State v. Brannan, 111 S.W.2d 347,
348-49 (Tex. Civ. App. - Waco 1937, writ ref'd); see also
Wvse v. Dewartment of Public Safetv, 733 S.W.2d 224, 228
(Tex. App. - Waco 1986, writ ref'd n.r.e.); Jones v. Texas
Gulf Sulwhur Co., 397 S.W.2d 304, 308 (Tex. Civ. App. -
Houston 1965, writ ref'd n.r.e.); Comment, Governmental
Immunitv from Suit and Liabilitv in Texas, suwra, at 344.
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Honorable Dan Morales - Page 6 (JM-1061)
The legislature may place restrictions
on a waiver of governmental immunity. The
legislature may waive immunity from suit
either by a statute of general application or
by concurrent resolution. The state may
waive immunity from liability by a statute of
general application. The constitution does
not permit the legislature to waive immunity
from liability after the occurrence of the
events that give rise to liability.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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