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). T hat

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

(11 th 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 [1 st 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.” T ex. 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.