Opinion

GREEN

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-92-637-CV

GREEN INTERNATIONAL, INC.,

FORMERLY KNOWN AS THE ARGEE CORPORATION,

APPELLANT

vs.

STATE OF TEXAS, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

AND BOARD OF CRIMINAL JUSTICE,

APPELLEES

FROM THE DISTRICT COURTS OF TRAVIS COUNTY, 167TH & 299TH

JUDICIAL DISTRICTS, NOS. 92-01387 & 93-06886, HONORABLE MARY

PEARL WILLIAMS & HONORABLE MARGARET COOPER, JUDGES PRESIDING

Appellant, Green International, Inc., formerly known as the Argee Corporation

("Green"), brought suit against the State of Texas, Texas Department of Criminal Justice, and

Board of Criminal Justice (collectively, the "State") for claims arising out of a construction

project. The State filed a plea to the jurisdiction, asserting that sovereign immunity barred

Green's suit. The trial court sustained the State's plea and dismissed the suit. After seeking and

purportedly obtaining the State's consent, Green again filed suit against the State of Texas and the

Texas Department of Criminal Justice. The State, however, disputed that consent had been given,

because the Governor of Texas had vetoed the legislature's consent resolution. Accordingly, the

State again filed a plea asserting sovereign immunity, and the trial court dismissed Green's second

suit. Green appeals from both dismissals. (1) We will affirm.

Green brings a total of thirteen points of error in the two appeals. In the first

appeal, Green asserts that the trial court erred in dismissing the suit because (1) no evidence was

presented to support the State's plea to the jurisdiction; (2) the trial court determined disputed

issues of material fact without hearing evidence and without observing the procedures for special

exceptions or summary judgments; (3) disputed fact issues remain regarding Green's claims for

taking, breach of contract, interference, and quantum meruit; (4) the trial court erred in not filing

findings of fact or conclusions of law; (5) sovereign immunity does not bar Green's taking claim;

(6) sovereign immunity cannot override the constitutional requirement for open courts; and (7)

sovereign immunity does not bar Green's claims for breach of contract, interference, and quantum

meruit. In the second appeal, (2) Green asserts that (8) the governor's veto was ineffective because

it was not executed in accordance with the procedure prescribed in the Texas Constitution; (9) the

evidence is legally and factually insufficient to support a finding that the veto was effective; (10)

conclusive evidence, or the great weight of the evidence, shows that the veto was invalid; (11) the

veto was outside the bounds of the governor's authority; (12) the veto violated the separation-of-powers clause of the Texas Constitution; and (13) Green's causes of action override the doctrine

of sovereign immunity.

FACTUAL AND PROCEDURAL BACKGROUND

In 1988 and 1989, Green contracted with the State to build three prison units.

According to its petitions, Green fully or substantially performed all work under the contracts and,

in addition, performed other work outside the contracts that the State required. Nonetheless, the

State refused to pay the amounts Green claimed were due and owing. (3)

On February 3, 1992, Green filed its first suit against the State, claiming breach

of contract, interference with its ability to perform under the contracts, taking without adequate

compensation under the Texas and United States Constitutions, and quantum meruit. Green

asserted that its right to bring suit was guaranteed by due process and by the "open courts"

provision of the Texas Constitution. The State filed a plea to the jurisdiction. On October 27,

1992, the trial court dismissed Green's suit on the basis of sovereign immunity.

On May 28, 1993, the Texas House of Representatives passed House Concurrent

Resolution 135 (the "Resolution"), granting Green "permission to sue the State of Texas and the

Texas Department of Criminal Justice" for "breach of various contracts" enumerated in the

Resolution. The Texas Senate approved the Resolution on May 29, 1993. The Resolution was

enrolled and duly executed by the speaker of the house, the president of the senate, the chief clerk

of the house, and the secretary of the senate on May 31, 1993.

On June 9, 1993, Green filed its second lawsuit against the State, again asserting

claims for breach of contract, interference with its ability to perform under the contracts, taking

without adequate compensation under the state and federal constitutions, and quantum meruit. On

June 20, 1993, the governor signed Proclamation No. 41-2578 (the "Proclamation"), vetoing the

Resolution. The Proclamation cited the following objections as the reason for the governor's veto:

This concurrent resolution would grant Green International permission to sue the

State of Texas concerning construction contracts with the Texas Department of

Criminal Justice. Due to the questionable nature of this lawsuit and the lack of

appropriation to pay a judgment that might result from it, this resolution should be

vetoed.

The same day, the governor delivered the Proclamation to the secretary of state. Attached to the

Proclamation was a copy of the Resolution, absent its signature page, which apparently had been

lost. On October 5, 1993, the trial court dismissed Green's second suit.

DISCUSSION

Sovereign Immunity

In its seventh point of error, Green asserts that in the first suit the trial court erred

in dismissing its causes of action for breach of contract, interference, and quantum meruit because

sovereign immunity should not bar such claims. Green argues that an action for breach of

contract is well established at common law and that there is no justification for allowing the state

immunity from suit on its contracts with private parties. Green also argues that whenever the state

enters a contract, it waives all of its immunity. We disagree.

Sovereign immunity consists of two basic principles of law. First, unless waived,

the state has immunity from liability. Missouri Pac. R.R. v. Brownsville Navigation Dist. , 453

S.W.2d 812, 813 (Tex. 1970); State v. Isbell , 94 S.W.2d 423, 425 (Tex. 1936); see Tex. Civ.

Prac. & Rem. Code Ann. § 107.002 (b) (West Supp. 1994) (legislative resolution granting

permission to sue the state does not waive immunity from liability). Thus, "a state cannot be

made liable to an action for the neglect or misfeasance of its officers, through which a person

sustains injury, unless by statute the action is given." City of Galveston v. Posnainsky , 62 Tex.

118, 125 (1884). Second, the state as sovereign is immune from suit without consent even if there

is no dispute regarding the state's liability. Missouri Pac. R.R. , 453 S.W.2d at 813 ; see, e.g.,

Hosner v. De Young , 1 Tex. 764, 769 (1847); Board of Land Comm'rs v. Walling , Dallam 524,

525-26 (Tex. 1843). The doctrine bars a suit against the state unless the state has expressly given

its consent to be sued. See, e.g., Missouri Pac. R.R. , 453 S.W.2d at 814 (statute creating

navigation district stating that district can "sue and be sued in all courts of this state" is sufficient

consent to sue state); Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.025

(West 1986) (person having claim under Tort Claims Act is granted permission to sue); Tex. Civ.

Prac. & Rem. Code Ann. §§ 107.001 -.005 (West Supp. 1994) (describing effect of legislative

resolution granting permission to sue state).

The state waives its immunity from liability when it enters into a contract:

It is well settled that so long as the state is engaged in making or enforcing laws,

or in the discharge of any other governmental function, it is to be regarded as a

sovereign, and has prerogatives which do not appertain to the individual citizen;

but when it becomes a suitor in its own courts, or a party to a contract with a

citizen, the same law applies to it as under like conditions governs the contracts of

an individual.

Fristoe v. Blum , 45 S.W. 998, 999 (Tex. 1898). However, even though the state waives its

immunity from liability when it enters into a contract, it retains its immunity from suit. This

Court has stated that:

The impotence of private individuals to enforce through the courts their contractual

rights against the state, by reason of inability to sue the state without its consent,

inheres in every such contract. This impotence, however, does not affect the

binding force of state obligations; nor does it deprive the Legislature of the power

to delegate to an appropriate agency authority to create binding contractual

obligations against the state.

Ferguson v. Johnson , 57 S.W.2d 372, 376 (Tex. Civ. App.Austin 1933, writ dism'd); see also

Dillard v. Austin Indep. Sch. Dist. , 806 S.W.2d 589, 592 (Tex. App.Austin 1991, writ denied)

("The state is still immune from suit sounding in contract, however, even though the state has

consented to liability by the act of contracting."); State v. Elliott , 212 S.W. 695, 698 (Tex. Civ.

App.Galveston 1919, writ ref'd) ("Because of her sovereignty, the state is not amenable to the

processes of courts, and cannot be sued therein, without her consent, but this in no way detracts

from the proposition that she may be liable.").

We are concerned here with the State's immunity from suit, not its immunity from

liability. In its first suit, Green did not allege that the State had consented to be sued. Therefore,

immunity from suit deprived the court of jurisdiction over Green's claims for breach of contract,

interference, and quantum meruit.

We are not unsympathetic to Green's argument that the state's immunity from suit

should be deemed waived whenever immunity from liability has been waived. Nonetheless, even

though the justifications for sovereign immunity have long been criticized, the waiver of sovereign

immunity is a matter properly addressed to the legislature, not the courts. University of Tex.

Medical Branch v. York , 871 S.W.2d 175, 177, 179 (Tex. 1994); Lowe v. Texas Tech Univ. , 540

S.W.2d 297, 298 (Tex. 1976). We overrule point of error seven.

Article I, § 17 "Taking"

In its fifth point of error, Green asserts that, in the first suit, the trial court erred

in dismissing its claims against the State for taking its property without adequate compensation.

See Tex. Const. art. I, § 17. Both parties agree that an action for just compensation for property

taken for public use under the Texas Constitution is a limited exception to the doctrine of

sovereign immunity. See Steele v. City of Houston , 603 S.W.2d 786, 791 (Tex. 1980).

Sovereign immunity from both suit and liability is waived under the Constitution when, pursuant

to its constitutional authority, the state takes, damages, or destroys property for public use.

Steele , 603 S.W.2d at 791 ; Dillard , 806 S.W.2d at 596 ; Courtney v. University of Tex. Sys. , 806

S.W.2d 277, 284 (Tex. App.Fort Worth 1991, writ denied). Thus, if Green alleged a valid

taking claim, sovereign immunity does not bar that claim.

Green alleged that its property has been unconstitutionally taken for public use

without compensation because the State did not pay the amount claimed under the contract or on

the basis of quantum meruit. A constitutional taking claim rests on the idea that, although the

state has the right to take, damage, or use, to the exclusion of the private owner, any property it

needs to fulfill a public use, the state must pay just compensation to the property owner. Texas

Highway Dep't v. Weber , 219 S.W.2d 70, 71 (Tex. 1949). Green asserts that the money due it

under contract and quantum meruit, its contract right to payment for services rendered, and its

cause of action for breach of contract constituted property taken by the State.

At least one court has considered labor, materials, and equipment used to construct

buildings to be property. See Industrial Constr. Mgmt. v. DeSoto Indep. Sch. Dist. , 785 S.W.2d

160, 163 (Tex. App.Dallas 1989, no writ). A cause of action also may be a property right.

Spellmon v. Sweeney , 819 S.W.2d 206, 210 (Tex. App.Waco 1991, no writ); Coulter v. Melady ,

489 S.W.2d 156, 159 (Tex. Civ. App.Texarkana 1972, writ ref'd n.r.e.), cert. denied , 414 U.S.

823 (1973). A valid contract has likewise been held to be property. See Lynch v. United States ,

292 U.S. 571, 579 (1934).

It has been held that if the government were to appropriate all or part of a contract

for its use, it would be obligated to pay just compensation. Kearney & Trecker Corp. v. United

States , 688 F.2d 780, 783 (Ct. Cl. 1982), cert. denied , 460 U.S. 1051 (1983); see also Lynch ,

292 U.S. at 579 . However, not every exercise of governmental power that interferes with or

frustrates performance of a contract is a taking. For example, in Kearney & Trecker Corp. , the

government expedited an order for a machine produced by Kearney & Trecker. To meet the

government's requirement, Kearney & Trecker delivered a machine that was originally scheduled

for a third party. As a result, the third party's machine order was substantially delayed, and the

third party cancelled its order. The court held, however, that the delay in the ultimate

performance of the third party's contract did not constitute a taking. Although performance of

the contract was rendered impossible, no taking occurred because the contract was not

appropriated for the use of the government; rather, the contract was ended. "[T]he mere

frustration of a contract resulting from the government's exercise of its power of eminent domain

is not a `taking' for which just compensation must be awarded." Kearney & Trecker Corp. , 688

F.2d at 783 ; see Omnia Commercial Co. v. United States , 261 U.S. 502, 510-11 (1923).

To recover under the theory that property has been taken, Green must establish

that: (1) the State intentionally performed certain acts; (4) (2) which resulted in a "taking" of

property; (3) for public use. City of Abilene v. Smithwick , 721 S.W.2d 949, 951 (Tex.

App.Eastland 1986, writ ref'd n.r.e.); see Steele , 603 S.W.2d at 788-92 . Under the first prong

of the test, a party must prove more than negligence to establish a taking claim. Steele , 603

S.W.2d at 790 . The party must show intent to take, or at least the intent to do the act that caused

the harm. Palacios Seafood, Inc. v. Piling, Inc. , 888 F.2d 1509, 1514 (5th Cir. 1989); see Steele ,

603 S.W.2d at 790-91 ; State v. Hale , 146 S.W.2d 731, 737 (Tex. 1941). The rationale for this

scienter requirement is the idea that negligence by government agents confers no benefit on the

public. See Palacios Seafood , 888 F.2d at 1514 . Federal authority also supports an interpretation

of the federal takings clause to include an element of governmental intent. Id. ; J.D. Hedin

Constr. Co. v. United States , 456 F.2d 1315, 1328-29 (Ct. Cl. 1972) (noting that while lack of

intent to acquire property or actually effect taking is not determinative, it is proper subject of

inquiry when taken together with other circumstances in determining whether there was taking).

In contractual situations, when the government acts within the procedures outlined

in the contract for the withholding of materials and equipment, the government has shown no

intent to take under eminent domain. J.D. Hedin Constr. Co. , 456 F.2d at 1329 . In addition,

whenever the government acts within a color of right to take or withhold property in a contractual

situation, the government cannot be said to have effected a taking because there was no intent to

take, only an intent to act within the scope of the contract. Acme Process Equip. Co. v. United

States , 347 F.2d 509, 537-38 (Ct. Cl. 1965), rev'd on other grounds , 385 U.S. 138 (1966). Even

if the government were to withhold property or payment it believed to be due the other party, the

government would still be acting within the color of right to the extent it had a good faith belief

that its actions were justified due to disagreements over payment due or performance under the

contract. Id .

In the present case, Green has not alleged that the State acted with the specific

intent to take its property for public use. Indeed, because the basis for this suit is an alleged

breach of contract, Green appears to concede that the State, while perhaps wrong about its

interpretation of contractual obligations, has acted within its color of right under the contract.

Since the State contracted with Green voluntarily and has paid some monies to Green over the

course of performance of the contract, the facts alleged by Green show that the State had no intent

to take the buildingsthe product of Green's labor, materials, and equipmentfor public use under

its power of eminent domain.

Even if Green had alleged that the State had the requisite intent, Green also must

establish that the State's possession was without Green's consent. Constitutional taking claims

are barred if the aggrieved party consents to the damage. See Palacios Seafood , 888 F.2d at

1515 . When an entity voluntarily enters into a contract and delivers a product to the state

pursuant to that contract, the entity thereby consents to the state's possession of the product. An

analogous case, State v. Steck Co. , 236 S.W.2d 866 (Tex. Civ. App.Austin 1951, writ ref'd),

involved a government contract with a stamp maker to produce cigarette tax stamps. Although

the stamps were delivered and accepted, the government refused to make payment. This Court,

in addressing the stamp maker's taking claim, stated:

It is clear that the stamps were delivered to the State, and its possession of them

was by virtue of the contract and not by virtue of a taking within the meaning of

Art. 1, sec. 17, supra. Appellee by making the contract, manufacturing the stamps

and delivering them to the State did so voluntarily and with its own consent, and

can not now say the stamps were taken under the power of eminent domain.

Id. at 869.

Here, Green voluntarily entered into a construction contract with the State. Green

chose to perform under the contract; indeed, it chose to perform to specifications and directions

of the State outside the original agreement. In addition, Green voluntarily gave possession of the

prison buildings to the State pursuant to the contract. Thus, Green's allegations affirmatively

establish that it consented to the State's possession of the buildings.

Federal courts have applied a similar analysis under the United States Constitution's

Takings Clause. See U.S. Const. amend. V. Those courts have held there can be only limited

application of the takings theory when rights have been voluntarily created by contract. See Sun

Oil Co. v. United States , 572 F.2d 786, 818 (Ct. Cl. 1978); J.J. Henry Co. v. United States , 411

F.2d 1246, 1249 (Ct. Cl. 1969).

Green relies on Industrial Construction Management v. DeSoto Independent School

District as being analogous to this case. 785 S.W.2d 160 . In DeSoto , a school district entered

into a contract for the construction of a cafeteria in one of its elementary schools. When a dispute

arose over how much money was owed, the construction company sued the school district for

breach of contract. The construction company had been paid some of the money due under the

contract; however, deductions had been made from the original contract price for certain delays.

Other sums the construction company claimed were owed also had not been paid. Id . at 161. The

trial court granted the school district's motion for summary judgment based on sovereign

immunity. On appeal, the court of appeals reversed the trial court's judgment. First, the court

held that when the state enters into a contract with another party, it waives all aspects of sovereign

immunity and thereby consents to suit. Id . at 163. Second, the court said that by not paying the

full amount due, the school district unconstitutionally "took" the construction company's labor,

materials, and equipment without its consent and without adequate compensation. Id .

We do not agree with either holding in DeSoto . As was recognized in Courtney

v. University of Texas System , it is not correct to say that both aspects of sovereign immunity are

waived when the state contracts with another party. 806 S.W.2d at 284. Although immunity

from liability is deemed waived when the state enters into a contract, immunity from suit is still

in force. Fristoe , 45 S.W. at 999 ; Dillard , 806 S.W.2d at 592 ; Elliott , 212 S.W. at 698 . Thus,

we decline to follow the DeSoto court's holding that sovereign immunity is wholly inapplicable

to disputes arising from contracts made by the state. (5)

We also decline to follow the holding in DeSoto that a sovereign's decision not to

pay the full contractual amount results in a taking under the Texas Constitution. A proper

analysis of a taking issue requires an inquiry into the measure of the state's intent to take under

its sovereign powers and into the issue of consent by the complaining party.

We do not, however, necessarily disagree with the result reached in DeSoto . The

suit was against a school district. The Texas Education Code provides, "The trustees . . . in the

name of the school district may . . . sue and be sued . . . ." Tex. Educ. Code Ann. § 23.26 (a)

(West 1987). That provision has been held to waive a school district's immunity from suit.

Missouri Pac. R.R. , 453 S.W.2d at 814 ; Dillard , 806 S.W.2d at 594 . Thus, the decision in

DeSoto to reverse the summary judgment was apparently correct. In the present case, unlike

DeSoto , there is no similar statutory provision waiving immunity from suit. We overrule Green's

fifth point of error.

Open Courts

Green's sixth point of error asserts that the "open courts" provision of the Texas

Constitution requires that it be allowed the opportunity to litigate its breach of contract and

quantum meruit claims despite the doctrine of sovereign immunity. See Tex. Const. art. I, § 13.

Green argues that sovereign immunity cannot override the constitutional requirement of open

courts, so that when a conflict occurs, open access to courts for adjudication of claims against the

state is required. We disagree.

The open-courts provision states: "All courts shall be open, and every person for

an injury done him, in his lands, goods, person or reputation, shall have remedy by due course

of law." Tex. Const. art. I, § 13. The purpose of the provision is to ensure all citizens the right

to bring well-established common-law causes of action and to ensure that government action will

not unreasonably abridge that right. Castillo v. Hidalgo Co. Water Dist. No. 1 , 771 S.W.2d 633,

636 (Tex. App.Corpus Christi 1989, no writ). The provision does not create new rights, but

ensures that the courts shall be open and afford a remedy for causes of action recognized at

common law. In re B.M.N. , 570 S.W.2d 493, 498 (Tex. Civ. App.Texarkana 1978, no writ).

Texas courts have devised a test to determine whether the open-courts provision

is applicable and, if applicable, whether it has been violated. Under that test, the open-courts

provision guarantees a litigant's right to redress only if (1) the litigant has a cognizable common-law cause of action and (2) the restriction on the litigant's right to bring that cause of action is

unreasonable or arbitrary when the effect of the restriction is balanced against its purpose and

basis. Sax v. Votteler , 648 S.W.2d 661, 666 (Tex. 1983); Stout v. Grand Prairie Indep. Sch.

Dist. , 733 S.W.2d 290, 293-94 (Tex. App.Dallas 1987, writ ref'd n.r.e.), cert. denied , 485 U.S.

907 (1988). We conclude that Green meets neither prong of the test.

First, Green's claims against the State would not have been cognizable at common

law. The Texas Constitution must be interpreted in light of the common law as it stood at the

time the Constitution was adopted. Lynch v. Port of Houston Auth. , 671 S.W.2d 954, 960 (Tex.

App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.).

It is the settled law of this State that the provisions of our State Constitution mean

what they meant when they were promulgated and adopted, and their meaning is

not different at any subsequent time. Constitutional provisions must be construed

in the light of conditions existing at the time of adoption, and it does not lie within

the power of the Legislature to change their meaning, or to enact laws in conflict

therewith.

Jones v. Ross , 173 S.W.2d 1022, 1024 (Tex. 1943). Sovereign immunity is a common-law

doctrine; it preceded the current Texas Constitution. Thus, we must read the open-courts

provision in light of the pre-existing concept of sovereign immunity. We find no authority

holding that the open-courts provision was intended to abolish or limit sovereign immunity.

Accordingly, Green "cannot complain of an unconstitutional deprivation of a nonexistent common

law vested right." Stout , 733 S.W.2d at 297 .

Moreover, in light of the long-standing recognition of the doctrine of sovereign

immunity, we would be unable to conclude that its application is an unreasonable or arbitrary

restriction on Green's right to redress. See Sax , 648 S.W.2d at 666 ; Stout , 733 S.W.2d at 297 .

We overrule Green's sixth point of error.

In its thirteenth point of error, Green complains that the trial court in the second

suit erred when it impliedly found that Green's claims were barred by the doctrine of sovereign

immunity, because it has pleaded causes of action which override the doctrine of sovereign

immunity. Green makes the same arguments under this point of error as in points of error five

through seven. We believe our discussion of points of error five through seven is dispositive of

this point of error. We overrule Green's thirteenth point of error.

Plea to the Jurisdiction

In its first point of error, Green complains that the trial court erred in dismissing

the first suit because the State produced no evidence to support its plea to the jurisdiction.

In a suit against the state, a plaintiff generally has the burden to plead and prove

that sovereign immunity to suit has been waived. Missouri Pac. R.R. , 453 S.W.2d at 813-14 ;

Walsh v. University of Tex. , 169 S.W.2d 993, 994 (Tex. Civ. App.El Paso 1942, writ ref'd).

Without an allegation and showing of consent to suit, the court is without jurisdiction to hear the

case. Missouri Pac. R.R. , 453 S.W.2d at 814 ; Walsh , 169 S.W.2d at 994 .

The State filed a verified plea to the jurisdiction in which it denied that it had

consented to Green's suit. Green's pleadings did not allege consent, nor did it present evidence

of consent. Although Green attempted to assert a taking claim as an exception to sovereign

immunity, we have held that the factual allegations of Green's petition affirmatively negated such

a constitutional claim; thus, the claims stated in Green's petition, by whatever name they may be

asserted, are barred by sovereign immunity. Under these circumstances, the trial court did not

err in dismissing Green's suit. See State v. Benavides , 772 S.W.2d 271, 274 (Tex. App.Corpus

Christi 1989, writ denied) (holding trial court did not err in granting plea to jurisdiction even

though no affidavits, testimony, or exhibits were introduced to support plea). We overrule

Green's first point of error.

In its second point of error, Green complains that the trial court in the first suit

circumvented the rules of procedure governing special-exception and summary-judgment practice.

We understand this point to be a complaint that the trial court determined disputed issues of fact,

or that the court dismissed Green's case for failure to state a cause of action, without giving Green

a chance to replead. Similarly, in its third point of error, Green complains that disputed fact

issues remain regarding its claims in its first suit for taking, breach of contract, interference, and

quantum meruit.

The trial court dismissed Green's case for lack of jurisdiction. The dismissal was

not based on the merits of Green's case. There were no disputed issues of fact presented to the

court with regard to the court's jurisdiction. Indeed, the only relevant issue was whether Green

had obtained the State's consent to suit. As to its first suit, Green did not dispute that consent had

not been obtained. We overrule Green's second and third points of error.

In its fourth point of error, Green complains that the trial court erred in not filing

findings of fact and conclusions of law pursuant to its request. See Tex. R. Civ. P. 296, 297.

When a trial court disposes of a case based on the allegations of the pleadings, the pleadings

themselves state the facts upon which the trial court bases its ruling; hence, the trial court need

not file findings and conclusions. Green , 860 S.W.2d at 244-45; see Southwest Stone Co. v.

Railroad Comm'n , 173 S.W.2d 325, 328 (Tex. Civ. App.Austin 1943, writ ref'd w.o.m.).

Moreover, even where the trial court has a duty to file findings of facts and conclusions of law,

its failure to do so is harmless if the record affirmatively shows that the complaining party has not

suffered injury. Green , 860 S.W.2d at 245; see Cherne Indus., Inc. v. Magallanes , 763 S.W.2d

768, 772 (Tex. 1989); cf. Hopkins v. NCNB Tex. Nat'l Bank , 822 S.W.2d 353, 355 (Tex.

App.Fort Worth 1992, no writ).

There were no disputed fact issues resolved in this case. The trial court did not

reach the merits of Green's case, but instead disposed of the case because there was no allegation

of the State's consent to suit. The allegations of Green's petition state the facts on which the trial

court determined its jurisdiction to hear the case. The record indicates that the trial court based

its dismissal on the doctrine of sovereign immunity. Under these circumstances, we hold that the

trial court had no duty to file findings of fact and conclusions of law; even if the trial court had

had such a duty, we would hold that Green has not been harmed by the trial court's refusal. We

overrule Green's fourth point of error.

Governor's Proclamation

In points of error eight through twelve, Green asserts that the governor's

Proclamation was not an effective veto of the Resolution. In its eighth point of error, Green

asserts that the Proclamation was not executed in accordance with the constitutional procedure.

In its ninth point of error, Green asserts that the evidence is legally or factually insufficient to

support a finding that the Proclamation was effective. In its tenth point of error, Green asserts

that the evidence proved conclusively or by the great weight of the evidence that the Proclamation

was invalid. In its eleventh point of error, Green asserts that the Proclamation was outside the

bounds of the governor's authority. In its twelfth point of error, Green asserts that the

Proclamation violated the separation-of-powers clause of the Texas Constitution.

The Civil Practice and Remedies Code provides that permission to sue the state may

be obtained by legislative resolution. Tex. Civ. Prac. & Rem. Code Ann. §§ 107.001 -.005 (West

Supp. 1994). Accordingly, Green sought and obtained a concurrent resolution granting it

permission to sue the State. The Texas Constitution, however, contains specific prerequisites for

such a resolution to become effective:

Every order, resolution or vote to which the concurrence of both Houses of the

Legislature may be necessary, except on questions of adjournment, shall be

presented to the Governor, and, before it shall take effect, shall be approved by

him ; or, being disapproved, shall be repassed by both Houses, and all the rules,

provisions and limitations shall apply thereto as prescribed in the last preceding

section in the case of a bill.

Tex. Const. art. IV, § 15 (emphasis added). Under this section, the governor's affirmative

approval is required before a resolution becomes effective; provided, however, that if such

approval is not given, the resolution may be repassed by both Houses. Id .; see Commercial

Standard Fire & Marine Co. v. Commissioner of Ins. , 429 S.W.2d 930, 934 (Tex. Civ.

App.Austin 1968, no writ). If so repassed, the procedures followed are those for enactment of

a "bill" as described in section 14, article IV of the Texas Constitution:

Sec. 14. Every bill which shall have passed both houses of the Legislature

shall be presented to the Governor for his approval. If he approve he shall sign it;

but if he disapprove it, he shall return it, with his objections, to the House in

which it originated, which House shall enter the objections at large upon its

journal, and proceed to reconsider it. If after such reconsideration, two-thirds of

the members present agree to pass the bill, it shall be sent, with the objections, to

the other House, by which likewise it shall be reconsidered; and, if approved by

two-thirds of the members of that House, it shall become a law . . . . If any bill

shall not be returned by the Governor with his objections within ten days (Sundays

excepted) after it shall have been presented to him, the same shall be a law, in like

manner as if he had signed it . . . .

In the present case, the governor did not approve the Resolution, regardless of

whether the Proclamation was an effective veto. Thus, under section 15, the Resolution did not

become effective. Moreover, the governor's refusal to approve the Resolution was surely

sufficient to render it "disapproved" within the meaning of section 15. Therefore, both houses

of the legislature had to repass the Resolution before it could become effective without the

governor's approval. It is undisputed, however, that the Resolution was not repassed by both

houses. Accordingly, the Resolution did not become effective and did not waive the State's

immunity from suit.

Nonetheless, Green argues that section 14, and not section 15, of article IV of the

Texas Constitution controls this case. It is obvious, however, that section 14 relates only to bills,

not resolutions. Tex. Const. art. IV, § 14. "The Constitution places bills and resolutions in

separate and distinct categories." Commercial Standard Fire & Marine Co. , 429 S.W.2d at 934 .

We recognize that section 15 directs that "all the rules, provisions and limitations shall apply

thereto as prescribed in the last preceding section [section 14] in the case of a bill." Tex. Const.

art. IV, § 15. However, section 15 specifies that those procedures are invoked only on the

repassing of a resolution, when it has once been disapproved by the governor. Id . Because the

Resolution here had not been repassed, section 14 procedures never came into play. Accordingly,

we do not address Green's points of error eight, nine, ten, eleven, and twelve challenging the

effectiveness of the governor's veto.

CONCLUSION

We affirm the judgments of the district courts.

J. Woodfin Jones, Justice

Before Justices Powers, Jones and Kidd

Affirmed

Filed: May 18, 1994

Publish

1. Green's first suit, styled Green International, Inc., formerly known as The Argee

Corporation vs. State of Texas, Texas Department of Criminal Justice and Board of

Criminal Justice, was filed in the 167th Judicial District Court in Travis County,

Honorable Mary Pearl Williams, Judge Presiding. Green appealed the dismissal of that

suit to this Court in Cause No. 3-92-637-CV.

Green's second suit, styled Green International, Inc., formerly known as The Argee

Corporation vs. State of Texas and Texas Department of Criminal Justice, was filed in

the 299th Judicial District Court in Travis County, Honorable Margaret Cooper, Judge

Presiding. Green appealed the dismissal of that suit to this Court in Cause No. 3-93-551-CV.

On December 8, 1993, this Court consolidated both appeals for all purposes and

ordered the cause to proceed as Cause No. 3-92-637-CV.

2. We will refer to Green's points of error filed in the first appeal (Cause No. 3-92-637-CV) as points one through seven and to its points of error filed in the second appeal

(Cause No. 3-93-551-CV) as points eight through thirteen.

3. When, as here, a plaintiff appeals from a judgment of dismissal for want of

jurisdiction, we must accept as true the allegations in the plaintiff's pleadings. Green v.

Watson , 860 S.W.2d 238 , 240 n.2 (Tex. App.Austin 1993, no writ); see also Hoffman v.

Cleburne Bldg. & Loan Ass'n , 22 S.W. 154, 155 (Tex. 1893); Laurito v. McVey , 496 S.W.2d

656, 659 (Tex. Civ. App.Austin 1973, no writ). Thus, for the limited purpose of

determining whether the trial court had jurisdiction over Green's causes of action, we will

assume the truth of the allegations of its pleadings. It should be noted, however, that the State

filed a general denial, thereby placing in issue Green's allegations that the various delays and

other problems Green encountered during the project were the fault of the State.

4. As an alternative to a showing of governmental intent, a party may show nuisance.

Steele , 603 S.W.2d at 791 . In the present case, Green has not alleged a government nuisance.

5. The Dallas Court of Appeals has recently reaffirmed its holding in DeSoto that the

state waives both aspects of sovereign immunity when it enters into a contract. See Texas

Dep't of Health v. Texas Health Enters., Inc. , 871 S.W.2d 498 (Tex. App.Dallas 1993, writ

denied). Interestingly, the court in Texas Health Enterprises cited as support for that

proposition an opinion from this Court, Ferris v. Texas Board of Chiropractic Examiners , 808

S.W.2d 514 (Tex. App.Austin 1991, writ denied). There is admittedly broad language in

Ferris , but the essential holding in that case was that the Open Meetings Act, Tex. Gov't Code

Ann. §§ 551.001 -.146 (West 1994), waives the state's immunity from suit. Accordingly,

Ferris does not stand for or support the proposition that the state's entering into a contract

waives immunity from suit.