Mike Leach v. Texas Tech University

NO. 07-10-0247-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JANUARY 20, 2011

______________________________

MIKE LEACH,

Appellant

v.

TEXAS TECH UNIVERSITY,

Appellee

___________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-550,359; HON. WILLIAM SOWDER, PRESIDING

_______________________________

Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

All political power is inherent in the people, and all free

governments are founded on their authority, and instituted for

their benefit. The faith of the people of Texas stands pledged

to the preservation of a republican form of government, and,

subject to this limitation only, they have at all times the

inalienable right to alter, reform or abolish their government in

such manner as they may think expedient. [1]

The issues before us today implicate the above quoted section of

our state constitution. We have been asked to determine whether the

common law doctrine of sovereign immunity barred the suit of Mike

Leach against Texas Tech University (the University), its Chancellor

Kent Hance, its regents Jerry Turner and Larry Anders, its president

Guy Bailey, its athletic director Gerald Myers, and its

employee/attorney Charlotte Bingham. Applying the doctrine via a plea

to the court’s jurisdiction, the trial court dismissed all but one

cause of action averred by Leach. The one remaining encompassed the

allegation of breached contract. The trial court refused to dismiss

it because the University “by and through its conduct . . . waived

[its] immunity from suit ….” We affirm in part, reverse in part, and

render in part the trial court’s order.

Standard of Review

Who did what to whom and why is not something this court will

decide. Nor do we address the veracity of any of the many accusations

levied by the parties against each other and third parties. That is

not within our authority when addressing whether a trial court acted

properly in granting a plea to its jurisdiction. This is so because

such a plea focuses upon the trial court’s authority to eventually

adjudicate the dispute on its merits; it is not itself an adjudication

on the merits.

Next, a plea to the trial court’s jurisdiction likens to a

motion for summary judgment. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 228 (Tex. 2004). So, the jurist considering

it is obligated to 1) interpret the pleadings in a light most

favorable to the party attempting to sustain the court’s jurisdiction,

i.e. Leach, 2) accept as true all evidence favorable to that party,

and 3) indulge in every reasonable inference arising from the evidence

and favorable to him. Id.; accord City of Elsa v. Gonzalez, 325

S.W.3d 622, __ (Tex. 2010).

A Simplistic Review of History

Given the nature of the issues at bar, it is helpful to delve

into the history underlying the doctrine of sovereign immunity. The

latter found its genesis in old England. Then, as most will admit,

the king (or queen as the case may be) was omnipotent. No inherent

authority belonged to those over whom he lorded. Kemper v. State, 138

S.W. 1025, 1043 (Tex. Crim App. 1911), overruled on other grounds by

Robertson v. State, 142 S.W. 533 (Tex. Crim. App. 1911). Rather, any

rights or privileges they enjoyed were no greater than those the

monarch deigned to bestow on them. Moreover, the judiciary that he

created not only recognized this relationship between the king and his

people but also deduced from it that since the former was sovereign

over all, the latter could not be sue him without his approval. Thus,

the tenet was of neither legislative nor executive origin. Instead,

judges simply declared it to be law.[2] Tex. A&M University-

Kingsville v. Lawson, 87 S.W.3d 518, 520 (Tex. 2002) (stating that

“the bar of sovereign immunity is a creature of the common law and not

of any legislative enactment”).

With the discovery and population of the New World, our

forefathers were called upon to establish their own system of

government. Having rebelled against the tyranny of British rule, one

would think that they would instill a government of limited powers.

Indeed, the constitutional passage written above purports to

encapsulate that sentiment. Nonetheless, not all things British were

rejected for our own courts adopted much of the common law developed

overseas. And, included in that body of law was the doctrine of

sovereign immunity. See Harris County Hosp. Dist. v. Tomball Regional

Hosp., 283 S.W.3d 838, 844 (Tex. 2009) (recognizing sovereign immunity

as part of the common law). So, though we have no king and despite

the words of article 1, §2 of our Texas Constitution, the government

(e.g., State, county, and municipalities) and those working for it in

their official capacities came to enjoy that created to protect

monarchs so many years ago.[3]

The Law of Sovereign Immunity

We wish not to mislead. It is clear that sovereign immunity is

alive and well in Texas. As it now exists, it provides a double

shield to the entities it protects. They are insulated from both

liability and suit. Tex. A&M University-Kingsville v. Lawson, 87

S.W.3d at 520-21; Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405

(Tex. 1997). That is, one can neither sue for payment nor compel

payment from the State without legislative consent. Federal Sign v.

Texas S. Univ., 951 S.W.2d at 405. Given this double shield,

defeating one still meant the other stood. Take, for instance, the

subject of contracts. In Texas, when the State executes such an

obligation it loses its immunity from liability. Id. at 405-06. Yet,

it remains protected from being forced into litigation via suit. Id.

So, while it must perform and, like any other party to a contract, is

responsible for its failure to do so, it cannot be sued for damages

without its permission if it opts to forego performance. In other

situations, the converse is also true; the State may grant someone

permission to sue it but retain its insulation from being forced to

pay. Id.; Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.

Political Subdivision Prop./Cas. Joint Self-Insurance Fund, 212 S.W.3d

320, 323-24 (Tex. 2006) (explaining the nature of the immunity). The

logic behind that circumstance is not ours to debate for that is the

law as declared by our Supreme Court.

That sovereign immunity extends to state universities is

similarly clear. Ben Bolt- Palito Blanco Consol. Indep. Sch. Dist. v.

Tex. Political Subdivision Prop./Cas. Ins. Joint Self-Insurance Fund,

212 S.W.3d at 324. Of less clarity, however, is the manner by which a

university or the State, for that matter, waives immunity.

Admittedly, our Supreme Court has declared that it has

“consistently deferred to the Legislature” to effectuate waiver. Id.

at 326, quoting Tex. Natural Res. Comm’n v. IT-Davy, 74 S.W.3d 849,

854 (Tex. 2002). That is, we have been told that only the legislature

can remove the insulation. Id. This purportedly is so because that

body “is better suited . . . to weigh conflicting public policies

associated with waiving immunity and subjecting the government to

increased liability, the burden of which the public must bear.” Id.

Moreover, the legislature accepted the onus of determining when to

lower the shield, as exemplified by statutes such as the Texas Tort

Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §101.021 (Vernon 2005)

(stating when governmental entities may be sued for torts committed by

their employees). Legislative writings with that effect, though, tend

to be the exception, not the rule. And, that the legislature intends

to keep waiver as the exception is borne out by §311.034 of the Texas

Government Code. Via the provision, our representatives declared that

“a statute shall not be construed as a waiver… unless the waiver is

effected by clear and unambiguous language.” Tex. Gov’t Code Ann.

§311.034 (Vernon Supp. 2010). What this means, then, is that unless

the words of a statute controlling a particular dispute between the

government and its wards clearly and unambiguously specify that one or

both aspects of immunity are removed, the governmental entity

continues to enjoy its judicially created insulation against paying

damages. See City of El Paso v. Heinrich, 284 S.W.3d 366, 368-69

(Tex. 2009) (holding that sovereign immunity protects an entity from

suit for monetary, as opposed to equitable, relief).

Reading §311.034 of the Government Code and our Supreme Court’s

utterances about deferring to the legislature would seem to belie our

prior observation that the manner of waiving immunity falls short of

clear. But, they do not; instances continue to arise supporting our

observation. For example, in Tex. A&M University-Kingsville v.

Lawson, the Supreme Court had before it a factual scenario involving

the university’s refusal to abide by a settlement agreement. The

latter encompassed the resolution of a whistleblower claim. And,

though the legislature waived its immunity from suits founded upon

such claims per §554.0035 of the Texas Government Code, Tex. A&M

University-Kingsville v. Lawson, 87 S.W.3d at 521 (so stating), it

said nothing about the waiver encompassing agreements settling those

suits. Id. Neither that omission nor the prior comments about

deferring to the legislature dissuaded a majority of the Texas Supreme

Court, though, from concluding that Lawson was not barred by sovereign

immunity from suing Texas A&M for breaching the settlement. Id. at

522-24.

Another opinion of the Supreme Court also tending to muddy the

waters is Federal Sign v. Texas Southern University. There, a

majority of justices first said that the decision to abrogate immunity

lay with the “. . . Legislature's sole province . . . . ” Federal

Sign v. Texas S. Univ., 951 S.W.2d at 409. Then, that same majority

wrote:

We hasten to observe that neither this case nor the ones on which

it relies should be read too broadly. We do not attempt to

decide this issue in any other circumstances other than the one

before us today. There may be other circumstances where the

State may waive its immunity by conduct other than simply

executing a contract so that it is not always immune from suit

when it contracts.

Id. at 408 n.1. Justice Hecht echoed that cautionary statement in a

concurring opinion. Joined by Chief Justice Phillips and Justices

Cornyn and Owen, he said that “[c]ategorical statements in the Court's

opinion must be read in this context.” Id. at 413. He then mentioned

various “hypotheticals” wherein “. . . the State may waive immunity

by conduct . . . so that it is not always immune from contract suits.”

Id. Such observations hardly comport with the idea that only the

legislature can decide when, where, and how to waive sovereign

immunity.

In reading Federal Sign, Texas A&M, and §311.034 of the

Government Code, we are left feeling somewhat like a dog chasing

quarry that only runs in circles. We strive to reach the designated

end only to find ourselves back at the beginning. Nevertheless, from

the foregoing precedent generalities can be garnered. If one invokes

a statute as basis for defeating immunity, that statute must clearly

and unambiguously abrogate the shield. Tex. Gov’t Code Ann. §311.034

(Vernon Supp. 2010). On the other hand, if the purported waiver is

founded upon non-statutory grounds, then we must search precedent to

determine whether the factual situation has already been addressed by

the Supreme Court. E.g., Federal Sign v. Texas S. Univ., supra

(wherein the court clearly held that executing a contract waives

immunity from liability). If that court has not, then we defer to the

legislature’s general authority to act on the matter, except when the

circumstances compel the judiciary to intervene, if ever. With that

said, we turn to the issues posed to us by the parties.

Application of Sovereign Immunity – Leach Issues

A. Waiver by Operating Procedure

We first address Leach’s argument that the University’s immunity

was waived by statute. The statute in question is §109.001(c) of the

Texas Education Code. Through it, the legislature wrote:

The governance, control, jurisdiction, organization, and

management of the Texas Tech University System is hereby vested

in the present board of regents of Texas Tech University, which

will hereinafter be known and designated as the board of regents

of the Texas Tech University System. The board by rule may

delegate a power or duty of the board to an officer, employee, or

other agent of the board.

Tex. Educ. Code Ann. §109.001(c) (Vernon 2002). Per that grant, the

University enacted specific “operating policy and procedures” allowing

an employee to “elect to remove such issues of grievance or complaint

from further consideration through . . .” the school’s administrative

process if the employee “files substantially the same issues . . .

with any external agency or court . . . .” Leach reads this as

consent from the University to sue it in state court. We disagree for

several reasons.

First, and assuming arguendo that any state-supported university

has the power to waive its immunity, such a waiver is not explicit in

the “operating policy and procedures” at issue. Recognizing that an

employee may end an internal grievance proceeding if the same

complaint is encompassed within a later suit speaks to whether the

person must exhaust internal administrative remedies before suing. It

does not speak to the matter of waiving immunity. Indeed, nothing in

the procedure even mentions immunity, much less its waiver. And,

there are situations requiring the exhaustion of administrative

remedies before suit may be filed, such as when someone alleges claims

under the Texas Whistleblower Act. See Tex. Gov’t Code Ann. §554.006

(Vernon 2004) (requiring the aggrieved employee to exhaust his

existing administrative remedies before filing suit). See also Tex.

Civ. Prac. & Rem. Code Ann. §101.101(a) (Vernon 2005).

Second, that the University’s legal counsel, chancellor, or

president may have thought Leach had the ability to prosecute his

claims in a court of law (as Leach posits) is of no moment.

Admittedly, someone’s personal opinion about the meaning of rules and

regulations may be informative or interesting. Yet, they are just

that, opinions that may be informative or interesting. They have no

binding effect on a court since the latter construes legal writings,

such as rules and statutes, de novo. City of San Antonio v. City of

Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (holding that statutes and rules

are subject to de novo review).

Finally, and to the extent Leach argues that the University’s

operating procedures are comparable to state statutes, we abide by the

legislature’s unambiguous directive regarding the waiver of immunity.

Again, per that directive, a statute “shall not be construed” as

waiving immunity unless the “waiver is effected by clear and

unambiguous language.” Tex. Gov’t Code Ann. §311.034 (Vernon Supp.

2010). Those words plainly mean that any waiver one attempts to

derive from a statute must be clear and unambiguous. And, the statute

underlying Leach’s claim of waiver is §109.001(c). According to him,

it purports to vest the University’s regents with the power to do most

anything they want, including the power to waive immunity. Yet,

nothing in it expressly addresses immunity or its waiver. Nor does

Leach cite us to authority suggesting that the legislature even had

the topic of immunity in mind when enacting the provision. So, if we

were to accept Leach’s contention, we would have to say that a

legislative statement omitting all explicit or implicit reference to

immunity actually encompasses that subject. Though some may find it

fun to engage in creative legal gymnastics to achieve a desired end,

we opt not to join them. Instead, our decision is to reject the

notion that by enacting §109.001(c) the legislature unambiguously

permitted the University to waive its immunity. See Foster v.

Teacher Ret. Sys., 273 S.W.3d 883, 886-87 (Tex. App.–Austin 2008, no

pet.) (rejecting the argument that because the legislature vested the

Texas Retirement System with the power to adopt necessary rules and

procedures, the System had the implied power to waive its immunity and

stating that administrative agencies created by the legislature cannot

waive immunity on behalf of the legislature).

B. Whistleblower Claim

Next, Leach argues that the trial court erred in dismissing his

whistleblower claim. We again disagree and overrule the issue.

It is true that suits upon claims arising under what we know as

the Texas Whistleblower’s Act, Tex. Gov’t Code Ann. §554.001 et seq.

(Vernon 2004) are not barred by sovereign immunity. Id. §554.0035.

Nonetheless, to enjoy that freedom to sue, the complainant must plead

facts establishing jurisdiction. In other words, he must allege facts

in his original petition satisfying the elements of the cause of

action for which immunity has been waived. See State v. Lueck, 290

S.W.3d 276, 883-85 (Tex. 2009) (holding that the elements of

§554.002(a) can be considered to determine both jurisdiction and

liability). That did not happen here. Nor do we think his petition

is capable of being amended to meet the requirement given the facts

involved.

The Whistleblower Act forbids a “state or local governmental

entity . . . [from] suspend[ing] or terminat[ing] the employment of,

or tak[ing] other adverse personnel action against, a public employee

who in good faith reports a violation of law by the employing

governmental entity or another public employee to an appropriate law

enforcement authority.” Tex. Gov’t Code Ann. §554.002(a) (Vernon

2004). Furthermore, a “report is made to an appropriate law

enforcement authority if the authority” receiving the report “is a

part of a state or local governmental entity . . . that the employee

in good faith believes is authorized to . . . regulate under or

enforce the law alleged to be violated . . . or . . . investigate or

prosecute a violation of criminal law.” Id. §554.002(b). Here, the

alleged report consisted of Leach filing suit against the University,

among others, in the district court.

The legislature did not explain what it meant by “report” when

drafting §554.002. Yet, we hold that it did not include the specific

situation here, given applicable rules of statutory construction. Per

those rules, our primary objective is to ascertain and give effect to

the legislature's intent. Tex. DOT v. City of Sunset Valley, 146

S.W.3d 637, 642 (Tex. 2004). This obligates us to consider 1) the

plain and common meaning of the words utilized in the writing, 2) the

context in which those words were used, 3) the objective sought by the

legislature, and 4) the consequences of a particular construction.

Id.; accord Tex. Gov’t Code Ann. §311.011(a) (Vernon 2005) (stating

that when words appearing in a statute are not defined by legislature,

those interpreting them must read them in context and construe them

according to the rules of grammar and common usage).

According to the dictionary, a “report” consists of relating,

disclosing, or accounting for particular facts, events, circumstances

or things. See Merriam-Webster’s Collegiate Dictionary 1056 (11th ed.

2003). A report card, for instance, gives an account of a student’s

grades while a police report relates the supposed facts of an event.

So, if one was to only consider this commonly understood meaning of

report, it would be rather easy to conclude that an original petition

commencing a lawsuit falls within the realm of a report. Indeed, most

petitions, if appropriately drafted, disclose circumstances or

misconduct that the complainant views as entitling him to relief.

However, the consideration of criteria in addition to the plain

meaning of the word is necessary if we are to abide by the mandate of

the Supreme Court.

One of those additional criteria is the context within which the

word appears. The relevant context here includes reference to an

“appropriate law enforcement authority.” Again, such an entity is one

charged with the ability to enforce or regulate the laws purportedly

breached or investigate the breach of those laws. Tex. DOT v.

Needham, 82 S.W.3d 314, 319-20 (Tex. 2002). The description calls

forth visions of police, administrative agencies, district attorneys,

the attorney general, and like bodies commonly associated with

investigating and enforcing the law. It takes a much greater stretch

of the imagination to include a district court within the category.

Indeed, precedent recognizes that the role of the judiciary excludes

investigative or executive functions of the type contemplated by the

statute. Robertson County v. Wymola, 17 S.W.3d 334, 341 (Tex.

App.–Austin 2000, pet. denied) (involving a whistleblower complaint).

And, the void is not filled simply because a district court has some

“general” authority to intercede in legal matters, especially when

that authority is adjudicative as opposed to investigative or

regulatory. See Tex. DOT v. Needham, 82 S.W.3d at 319-20 (stating

that it is not enough for the entity to have general authority to

investigate or regulate a matter).

We further note that portion of the act requiring the

whistleblower to exhaust administrative remedies before seeking

judicial relief. That is, the statute clearly obligates the aggrieved

employee to “initiate action under the grievance or appeal procedures

of the employing state or local governmental entity relating to

suspension or termination of employment or adverse personnel action

before suing.” Tex. Gov’t Code Ann. §554.006(a) (Vernon 2004). It

makes little sense to have this requirement if filing an original

petition in a court of law constitutes an acceptable report under the

act. See Wilson v. Arlington Indep. Sch. Dist., No. 4:00-CV-0069-A,

2001 U.S. Dist. Lexis 10715, at *12 (N.D. Tex. July 26, 2001) (stating

that unless administrative remedies are exhausted per the statute, a

trial court lacks subject matter jurisdiction over the whistleblower

complaint). Indeed, to hold otherwise would be tantamount to negating

the obligation to first pursue administrative avenues of relief, and

we must endeavor to read a statute in a way that negates no portion of

it. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).

Simply put, the factual allegations contained in Leach’s

petition, the context in which the word “report” appears, and the

traditional purpose of the judiciary lead us to conclude, as a matter

of law, that filing a lawsuit against the University and others failed

to satisfy the mandate of §554.002(a). This is not to say that

circumstances unlike those at bar may lead to a different result.[4]

But, filing suit to redress claims of breached contract and

constitutional deprivation arising from the termination of the

complainant’s job is not such a circumstance.

As for the argument that all Leach needed was to believe, in

good faith, that his lawsuit constituted the requisite report, we say

the following. It is true that the employee need only have a good

faith belief that he is complying with the elements of §554.002(a).

Tex. DOT v. Needham, 82 S.W.3d at 320; Potter County v. Parton, No. 07-

03-0338-CV, 2005 Tex. App. Lexis 4381, at *8-9 (Tex. App.–Amarillo

June 8, 2005, no pet.). Yet, good faith involves more than what the

employee may have believed subjectively. Potter County v. Parton,

2005 Tex. App. Lexis 4381, at *8-9. Rather, the phrase has two

components, one subjective (i.e. what the employee actually believed)

and the other objective (i.e. whether a reasonably prudent person in

the same circumstances could have thought that). Id. And, whether

the latter component exists depends on circumstances such as the

information available to the employee, his education and experience,

the nature of the dispute, and the nature of the entity involved, for

example. See id. at *10 (describing the objective component as being

a “reasonable [belief] in light of [the reporting employee’s] training

and experience”).

Here, the complainant was a successful NCAA division one

football coach with a college degree and who received post-graduate

legal training. One can reasonably assume that it takes a bit of

savvy and intelligence to successfully field a team at that level of

play and navigate through the morass of NCAA rules and regulations.

Moreover, a person having such an educational background and

professional skills is somewhat different than the ordinary layman

unskilled in interpreting technical or legal jargon. To this, we add

the circumstance that Leach was not left alone to sojourn through a

legal maze once the University initiated steps to discipline him. He

had several attorneys to help him uncover, analyze, and apply the laws

of Texas. Together, they not only dealt with the University’s

allegations but also filed the lawsuit before us. Moreover, the

judicial precedent and statutory writings upon which we rely were

available to them, as well. Given this, we arrive at but one

conclusion. A reasonable person in the same circumstances and having

the same experience, education, and legal help as Leach would not have

ignored statutorily mandated exhaustion requirements and pertinent

judicial writings to deduce that filing a lawsuit satisfied the

elements of §554.002(a).[5] In short, no evidence exists enabling us

to conclude that Leach satisfied the objective prong of a good faith

belief.

C. Constitutional Claims

We next address the argument that the trial court erred in

dismissing Leach’s constitutional claims. The claims in question

involve the purported taking without compensation of Leach’s property

and his termination without due process.[6] We overrule the issues in

part.

1. Takings Claim

With regard to the takings claim, we find the Supreme Court’s

decision in General Servs. Comm’n v. Little-Tex Insulation Co., 39

S.W.3d 591 (Tex. 2001) dispositive. According to the Supreme Court in

Little-Tex, to establish a takings claim, the complainant must prove

1) that the State intentionally performed certain acts, 2) that the

acts resulted in a “taking” of property, and 3) that the property was

taken for public use. Id. at 598. These elements are not satisfied

when the State withholds property in a contractual dispute. This is

apparently so because the party demanding compensation after

performing his contractual duty to provide goods or services actually

provided those goods or services voluntarily as opposed to being

forced to do so via the State’s power of eminent domain. Id. at 598-

99, quoting State v. Steck Co., 236 S.W.2d 866 (Tex. Civ. App.–Austin

1951, writ ref’d). So, when the State withholds property under color

of a contractual right, such as when it believes the contract was not

properly performed, it is not acting as a sovereign invoking powers of

eminent domain, but rather as a private party to a contract invoking

rights expressed or implicit in the contract. Id. at 599. Thus, the

takings clause appearing under Texas Constitution art. I, §17 does not

apply to contractual disputes. [7]

The compensation sought by and allegedly due Leach is that which

the University contracted to pay him in return for his performance of

services as the head football coach. The University purports to

withhold that compensation because Leach failed to abide by the terms

of their accord. Thus, what we have here is nothing other than a

contractual dispute described in Little-Tex and which falls outside

the takings clause.

2. Denial of Due Course of Law

As for the dispute regarding due process, Leach argues that he

was denied constitutionally protected interests without due course of

law. The property rights at issue were to 1) continue employment for

a term of years (except when terminated for cause) and 2) specific

compensation accruing while so employed. And because he tendered

sufficient evidence establishing the constitutional claim, it

allegedly was error for the trial court to use the doctrine of

sovereign immunity to dismiss it. We sustain the issue for several

reasons.

Sovereign immunity bars a trial court from adjudicating lawsuits

through which a complainant seeks money damages from the State. Tex.

Natural Res. & Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853

(Tex. 2002). It does not pretermit legal actions against a

governmental entity seeking equitable relief to redress violations of

the Texas Constitution. City of Elsa v. M.A.L., 226 S.W.3d 390, 392

(Tex. 2007); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.

1995); City of Arlington v. Randall, 301 S.W.3d 896, 906-07 (Tex.

App.–Fort Worth 2009, pet. filed). One means of determining whether

constitutional violations have occurred that survive the invocation of

sovereign immunity is through prosecuting a declaratory action. Id.

at 908-09; Andrade v. NAACP of Austin, 287 S.W.3d 240, 251 (Tex.

App.–Austin 2009, pet. granted). Leach requested such declaratory

relief here when seeking a declaration of whether he was denied a

constitutionally protected interest by the University without due

course of the law. See Tex. Const. art. I, §19 (stating that “[n]o

citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by

the due course of the law of the land”). Admittedly, he cannot avoid

the shield of sovereign immunity by simply morphing a demand for

monetary relief into one for declaratory relief, City of El Paso v.

Heinrich, 284 S.W.3d at 370-71, and that is what the University

contended he did here. That is, it argued through its plea to the

court’s jurisdiction that his pleadings regarding the due course of

law violations were “a disguised attempt to obtain money damages under

the 2009 Contract recast as a declaratory judgment claim.” Yet,

whether Leach had a constitutionally protected interest (property or

liberty) that was denied him without due process is quite distinct

from whether the University breached the employment contract. It is

possible for there to be a due process violation without a breach of

contract or a breach of contract without a due process violation. So,

simply because both types of claims may be included in the same

petition does not ipso facto mean that the constitutional allegation

is a mere “disguised attempt to obtain money damages” for a breach of

contract. Examining the nature of the relief sought is determinative

for one may invoke the jurisdiction of Texas courts via a declaratory

action to redress, through equitable remedies, unconstitutional acts.

City of Elsa v. M.A.L., supra. So, the trial court had jurisdiction

to declare whether Leach was denied due course of law even though it

cannot adjudicate the attempt to recover damages for breach of

contract. The same may be true for other choses-in-action that he

may assert and which are independent of his breach of contract claim;

they must be assessed on an individual basis.

D. Dismissal of Bailey, Myers, and Bingham

Leach next contends that the trial court erred in dismissing the

claims asserted against President Bailey, Athletic Director Myers and

Vice-Chancellor Bingham in their official capacities simply because he

had sued the University as well. We dismiss this particular

contention for want of jurisdiction.

The trial court’s decision was not founded upon sovereign

immunity but rather its construction of §101.106 of the Texas Civil

Practice and Remedies Code. The latter deals with a plaintiff’s

decision to sue both a governmental unit and its employees and bars

the plaintiff from suing both. Tex. Civ. Prac. & Rem. Code Ann.

§101.106(a) (Vernon 2005) (stating that the filing of a suit under the

tort claims act against a governmental unit constitutes an irrevocable

election by the plaintiff and bars any suit or recovery against the

individual employee regarding the same subject matter).

Next, our jurisdiction is not plenary. We can only review suits

wherein a final judgment or order has been entered. Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This is not true, though,

if the dispute encompasses an issue addressed in §51.014 of the Texas

Civil Practice and Remedies Code. In such situations, we may consider

the dispute though the trial court has yet to dispose of the entire

action. Tex. Civ. Prac. & Rem. Code Ann. §51.04 (Vernon 2005).

Dismissing governmental employees under §101.106 because the plaintiff

sued their employer falls within none of the categories itemized in

§51.014. It does not involve 1) receivers or trustees or their

appointment or removal, 2) a temporary injunction, 3) the denial of a

motion for summary judgment based on an assertion of immunity, 4) a

special appearance, 5) a plea to the trial court’s jurisdiction filed

“by a governmental unit,” or any other topic mentioned in the statute.

So, because the order of dismissal from which appeal was taken does

not dispose of all claims asserted against all defendants (i.e. Craig

James, Larry Anders, and Jerry Turner) we have no jurisdiction to

resolve this aspect of the appeal. The particular dispute remains

before the trial court should it care to consider its decision in

light of the Supreme Court’s recent opinions in Tex. Lottery Comm’n v.

First State Bank of DeQueen, 323 S.W.3d 628 (Tex. 2010) and City of El

Paso v. Heinrich.

The University’s Appellate Issues

A. Breach of Contract

Through its sole issue, the University argues that the trial

court erred in refusing to dismiss Leach’s breach of contract

allegation. Again, the trial court refused to do so because it

reasoned that the University “waived its immunity from suit . . . by

and through its conduct.” We sustain the issue.

As previously mentioned, the Supreme Court left open, in Federal

Sign, the question of whether the state entity may waive its immunity

through its conduct. Yet, whether the idea of waiving immunity

through conduct extends to choses-in-action sounding in breach of

contract is not an open question. In General Servs. Comm’n. v. Little-

Tex Insulation Co., Little-Tex sued Texas A&M for breach of contract

and argued that the school waived its immunity by accepting the

benefits of the contract. The proposition was rejected by the Supreme

Court after acknowledging that it had left open “the question of

whether the State’s conduct may waive its immunity from suit.”

General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d at 595.

The Court rather clearly stated that “there is but one route to the

courthouse for breach-of-contract claims against the State, and that

route is through the Legislature.” Id. at 597; accord Tex. Parks &

Wildlife Dep’t v E. E. Lowrey Realty, Ltd., 235 S.W.3d 692, 695 n.2

(Tex. 2007) (stating that “Lowrey could only pursue a breach of

contract claim against the State if he first obtained legislative

consent . . .”); Tex. Natural Res. Conservation Comm’n. v. IT-Davy, 74

S.W.3d at 856-57 (rejecting application of the waiver-by-conduct

doctrine in breach of contract suits and reaffirming that only the

legislature can waive immunity).

Admittedly, the factual circumstances in Little-Tex differ from

those before us. And, because of that Leach argues that the holding

does not control the outcome here. Though the circumstances may

differ between the two suits, the Supreme Court in Little-Tex actually

focused not upon the facts underlying the cause of action but rather

upon the cause of action itself, that is, the claim of breached

contract. Nor did it simply say that a governmental entity retains

its immunity even though it accepted contractual benefits. Rather, it

told us that there was only one way the State could be sued for breach

of contract and that involved first garnering the legislature’s

approval via chapter 107 of the Texas Civil Practice and Remedies

Code. See Employees Retirement Sys. v. Putnam, LLC., 294 S.W.3d 309,

327 (Tex. App.–Austin 2009, no pet.) (also recognizing the Supreme

Court’s “rejection of the waiver-by-conduct doctrine since Federal

Sign” in suits for breached contract).

We also recognize that our opinion contradicts that in Texas

Southern University v. State Street Bank & Trust Co., 212 S.W.2d 893

(Tex. App.–Houston [1st Dist.] 2007, pet. denied). In that breach of

contract case, the intermediate court of appeals held that the

University’s conduct resulted in the waiver of its immunity. That

decision, however, contradicts the Supreme Court’s statements in

Little-Tex, IT-Davy, and E. E. Lowrey Realty, Ltd. about the only

avenue for redress being through the Texas Legislature. If the

highest civil court in Texas truly means what it said, then the

holding in State Street simply is wrong. If, on the other hand, there

may still be instances akin to those in State Street warranting the

application of waiver by conduct, then the Supreme’s Court’s

utterances about the legislature having the exclusive authority to

waive sovereign immunity are inaccurate. In either case, it is a

matter for the Supreme Court (or Texas Legislature) to resolve, and we

have no choice but to abide by their decision.

In sum, we reverse those portions of the trial court’s order 1)

dismissing, for want of jurisdiction, Leach’s due course of law claim

and request for non-monetary declaratory and equitable relief founded

upon it and 2) concluding that Texas Tech University waived its

sovereign immunity from the breach of contract claim due to its

conduct. We next dismiss, for want of jurisdiction, the appellate

issue involving whether Bailey, Myers, and Bingham were properly

dismissed by the trial court, render judgment dismissing Leach’s claim

of breached contract against the University, and affirm the remainder

of the order granting the pleas to the trial court’s jurisdiction.

Brian Quinn

Chief Justice

-----------------------

[1]Tex. Const. art. I, §2.

[2]Dare we infer that this was an early example of judicial

activism?

[3]Some may think it ironic that sovereign immunity remains

viable given the wording of our Texas Constitution. Again, it

mandates that “[a]ll political power is inherent in the people, and

all free governments are founded on their authority, and instituted

for their benefit.” Tex. Const. art. I, §2 (emphasis added). Thus,

true sovereignty lies in the people of Texas, not the government they

created. Kemper v. State, 138 S.W. 1025, 1043 (Tex. Crim. App. 1911)

(stating that “[t]he rule in America is that the American people are

the sovereigns, and in them is lodged all power, and the agencies of

government possess no authority save that which is delegated to them

by the people in the written compact . . . which is styled the

‘Constitution’ . . . .”). That the true sovereign may be subjected to

suit without consent while their creation cannot seems to diminish the

meaning of art. I, §2 of the Constitution.

[4]For instance, a district judge may well be the appropriate

authority with whom to file a report if the complaint involves the

misconduct of a county auditor. Since the latter post is filled by a

district judge, Tex. Loc. Gov’t Code Ann. §84.002(a) & (b) (Vernon

2008), and the district judge also may remove the auditor, id.

§84.009, then a district judge may be the one best able to address the

incident. But, that is not a question we must decide today.

[5]That Leach cites us to City of Elsa v. Gonzalez, 292 S.W.3d

221 (Tex. App.–Corpus Christi 2009) rev’d, 2010 Tex. Lexis 693 (Tex.

October 1, 2010) as indicating that a constitutional county judge may

be an acceptable authority with whom to file a report is of no import.

This is so for several reasons. First, the Supreme Court reversed

the cited opinion and instead held that Gonzalez failed to satisfy the

need to file, in good faith, a report with the pertinent authority.

City of Elsa v. Gonzalez, No. 09-0834, 2010 Tex. Lexis 693, at *15

(Tex. October 1, 2010). Second, the office and duties of a

constitutional county judge are quite different from those of a county

court at law or district court judge. Admittedly, each exercises

adjudicative powers, but a constitutional county court judge actually

acts as the administrative head of the county and runs, with the help

of commissioners, that level of government. So, the hat he wears is

also highly legislative and executive in nature. Moreover, in

performing his legislative and executive duties, a constitutional

county judge is much more likely to be lawfully obliged to investigate

and regulate matters of the county and coffers he oversees than would

be a district judge viz the conduct of a state chartered university.

Finally, and as noted by the Supreme Court in its City of Elsa

opinion, the appropriate authority contemplated in the Whistleblower

Act is one that can do more than simply act in a remedial manner. Id.

at *14, citing Duvall v. Tex. Dep’t of Human Services, 82 S.W.3d 474,

481-82 (Tex. App.–Austin 2002, no pet.). Since a constitutional

county court judge exercises legislative and executive powers, his

post affords him greater ability to act in ways other than remedial.

The same generally cannot be said of either a county court at law and

district court judge whose acts are remedial in nature, i.e. they

adjudicate disputes and remediate purported wrongs.

[6]According to his live pleading, Leach restricts his due

process claim to the rights emanating from art. I, §19 of the Texas

Constitution. Nothing is said about the Due Process Clause contained

in either the Fifth or Fourteenth Amendments to the United States

Constitution.

[7]That the State is not acting as a sovereign (but rather a

private party) when withholding money due under a contract but

nonetheless enjoys immunity from suit for withholding that money

because it is deemed the sovereign is somewhat of a contradiction. No

doubt there is a reasonable explanation for the apparent

inconsistency, and the Supreme Court is in the best position to

explain it.