Sovereign Immunity in Texas

Well, this morning’s Texas law explosion is explained in large part by a tremendously important sovereign immunity opinion the Texas Supreme Court handed down. The opinion reverses a 1970 Texas Supreme Court and holds that the “sue and be sued” language that shows up all the time in City charters and statutes and the like may not in fact be construed as a waiver of sovereign immunity from suit. The opinion also notes that the Legislature has recently enacted a provision which waives immunity for breach of contract when a local government enters into a contract, which, according to the Court, would not have been necessary if “sue and be sued” really meant a waiver of immunity from suit.

According to the Supreme Court, when a provision of a city charter says that a governmental body can sue and be sued “all it clearly says is that the City can be sued and impleaded in court when suit is permitted, not that immunity is waived for all suits.” (emphasis in original). Thus, the Court overruled the 1970 Missouri Pacific case, over Justice O’Neill’s dissent (“Today, in a sweeping reversal unfettered by the constraints of stare decisis or the deference due the Legislature by its longstanding acceptance of our decision, the Court judicially amends those statutes. . . Such a cavalier approach to precedent is deeply disturbing”).

Tooke v. City of Mexia, ___ S.W.3d ___ (Tex. 2006) (Cause No. 03-0878).

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