Texas Education Agency v. Leeper

*447 GONZALEZ, Justice,

concurring in part and dissenting in part on motion for rehearing.

My opinion of June 15, 1994 is withdrawn and this one is substituted in its place. With the exception of the discussion of attorneys’ fees and court costs, I join the Court’s opinion and judgment. I dissent, however, from Part IV of the Court’s opinion, from the order denying a motion for rehearing, and from that part of the judgment which orders that the plaintiffs recover attorneys’ fees and court costs from the defendants. In this case, the doctrine of sovereign immunity precludes an award of attorneys’ fees against the defendants in the absence of an express waiver of immunity by the Legislature. The Court errs in ruling that the Uniform Declaratory Judgments Act (DJA), Tex.Civ.PRAC. & Rem.Code §§ 37.001-.011, implicitly waives sovereign immunity so that defendants may be held liable for attorneys’ fees. 893 S.W.2d 432, 445-46 (Tex.1994). The Court gives the DJA a curious construction that is not supported by logic or well-established precedent and a construction which has the potential for disastrous effects on school districts and other governmental agencies. I would grant the motion for rehearing and hold that the school districts are not liable for attorneys’ fees under the DJA, but would consider whether they are available under 42 U.S.C. § 1983 .

I continue to adhere to the principles expressed in my opinion in Lee v. Downey, 842 S.W.2d 646 , 655 n. 4 (Tex.1992) (Gonzalez, J., dissenting on motion for rehearing). To recover attorneys’ fees in this case, the plaintiffs must show that their suit is an exception to two broad rules. The first rule is that subdivisions of the sovereign are immune from suit. See W.D. Haden Co. v. Dodgen, 158 Tex. 74 , 308 S.W.2d 838, 839 (1958) (approving the court of appeals’ statement that a suit against the state should be abated “because of the State’s immunity from suits brought without its consent,” 303 S.W.2d 443, 445 (Tex.Civ.App.-Fort Worth 1957)). Only the Legislature may waive sovereign immunity. Guillory v. Pori of Houston Auth., 845 S.W.2d 812, 813 (Tex.1993); see Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978) (citing Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976)) (stating, “any waiver of governmental immunity is a matter to be addressed by the Legislature.”); Hosner v. DeYoung, 1 Tex. 764, 769 (1847) (holding “No State can be sued in her own Courts without her consent and then only in a manner indicated by that consent.”). Furthermore, the Legislature must use clear and unambiguous language to waive immunity. See Guillory, 845 S.W.2d at 813-14 (explaining that waiver exposes the government to increased liability that ultimately the state’s taxpayers bear); Texas Prison Bd. v. Cabeen, 159 S.W.2d 523, 525-28 (Tex.Civ.App.-Beaumont 1942, wilt refd) (examining a statute to determine if the Legislature had expressly waived sovereign immunity). The second rule is that attorneys’ fees may not be awarded unless prescribed by statute for the particular kind of case. First City Bank v. Guex, 677 S.W.2d 25, 30 (Tex.1984); see Texas Employment Comm’n v. Camarena, 710 S.W.2d 665, 670 (Tex.App.-Austin 1986), rev’d on other grounds, 754 S.W.2d 149 (Tex.1988). These rules prohibit a court from awarding attorneys’ fees merely because it deems them appropriate. Camarena, 710 S.W.2d at 670 . Thus, in this case, an award of attorneys’ fees would be permissible only if a statute expressly waived sovereign immunity and authorized the recovery of attorneys’ fees from the defendant governmental agencies.

The DJA does not. The DJA waives sovereign immunity insofar as it permits plaintiffs to bring actions in order to construe legislative enactments of governmental entities; it also requires that interested parties, including governmental agencies, be joined in these suits. See Tex.Civ.PRAC. & Rem.Code §§ 37.004(a), 37.006. However, the Court confuses this waiver of the government’s immunity from suit with waiver of immunity from liability. See Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); accord Couch v. Ector County, 860 S.W.2d 659, 661 (Tex.App.-El Paso 1993, no writ); Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 164-65 (Tex. App.-Fort Worth 1992, appeal dism’d as moot); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.-Austin 1991, writ denied). Nowhere does the DJA ex *448 pressly authorize this Court to hold a governmental entity liable for attorneys’ fees in a declaratory judgment action. See Lee, 842 S.W.2d at 655 n. 4 (Gonzalez, J., dissenting on motion for rehearing); Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870, 875 (Tex.App.-Dallas 1992, writ denied); Waugh v. City of Dallas, 814 S.W.2d 492, 496-97 (Tex.App.-Dallas 1991, writ denied); Rodeheaver v. Steigerwald, 807 S.W.2d 790, 793 (Tex.App.-Houston [14th Dist.] 1991, writ denied), cert. denied, 502 U.S. 1093 , 112 S.Ct. 1167 , 117 L.Ed.2d 414 (1992); City of Houston v. De Trapani 771 S.W.2d 703, 708 (Tex.App.-Houston [14th Dist.] 1989, writ denied); Texas Dep’t of Human Servs. v. Methodist Retirement Servs., Inc., 763 S.W.2d 613, 614 (Tex.App.-Austin 1989, no writ); City of Houston v. Lee, 762 S.W.2d 180, 188 (Tex.App.- Houston [1st Dist.] 1988), rev’d on other grounds, 807 S.W.2d 290 (Tex.1991); Camarena, 710 S.W.2d at 670 . For this reason alone, the order that the defendants pay attorneys’ fees is erroneous.

The Court compounds its error by determining that the DJA implicitly authorizes the plaintiffs’ recovery of attorneys’ fees in this declaratory judgment suit. 893 S.W.2d at 445-46 . This holding conflicts with the legislative admonishment that a “resolution granting permission to sue does not waive to any extent immunity from liability.” Tex. Civ.PRAC. & Rem.Code § 107.002(b) (Supp.1995) (emphasis added). When the Legislature was considering the House Bill it later enacted as the attorney fee provision of the DJA, the director of the Legislative Budget Board sent a fiscal note to the Committee on Judiciary of the House of Representatives which stated:

No fiscal implication or additional cost to the State or units of local government attributable to the bill, should it be enacted, is anticipated.

Fiscal Note, Tex.H.B. 875, 67th Leg., R.S., ch. 190, § 1, 1981 Tex.Gen.Laws 455, 455 (amending Tex.Rev.Civ.Stat. art. 2524-1 § 10, now codified at Tex.Civ.Prac. & Rem. Code § 37.009). The Legislature did not intend or foresee that it was authorizing the award of attorneys’ fees and court costs against state entities when it amended the DJA.

Only through a feat of statutory sleight of hand does the Court achieve its holding that attorneys’ fees can be awarded under the DJA. The result is a disappearing act for the rule requiring a clear and unambiguous waiver of sovereign immunity. As stated, the DJA simply does not contain a clear and unambiguous statement that a governmental entity may be held liable for attorneys’ fees. See Tex.Civ.Prac. & Rem.Code § 37.009. The Legislature certainly has the power to place this burden on taxpayers. However, in my opinion, it has not done so in the clear and unambiguous language that this Court has previously required.

I would retain the rule that the Legislature must expressly waive sovereign immunity. By finding an implied waiver of sovereign immunity in this case, the Court disturbs an important principle in the law of sovereign immunity. Presumably a plaintiff may now recover whatever costs, fees, or damages which he or she can persuade a trial court that a statute impliedly allows. By its ruling today, the Court turns the law of sovereign immunity on its head. Now a governmental entity will have to identify statutes that expressly bar recovery of costs, fees, or damages before it will be excused from such liability. Thus, the Court’s implied waiver ruling introduces a grave threat to the state’s financial resources.

Furthermore, the Legislature is perfectly capable of drafting statutes which expressly waive sovereign immunity, without assistance from us or any other court. For example, the Texas Tort Claims Act has a clear and unambiguous waiver of sovereign immunity, thereby allowing a plaintiff to bring suit against a governmental entity in certain circumstances. See Tex.Ctv.Prac. & Rem.Code § 101.025(a) (“Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.”). However, the Texas Tort Claims Act does not expressly provide for the recovery of fees and costs, and no court has awarded them to a plaintiff under the Act. See id. § 101.021(1) (allowing a governmental unit to be hable solely for “property damage, personal injury, and *449 death”); id. § 101.023 (capping liability for bodily injury or death). Similarly, the Open Government Act expressly authorizes actions against otherwise immune governmental entities in order to prevent violations of the Act. Tex.Gov’t Code § 551.142. In contrast to the Texas Tort Claims Act, the Open Government Act unambiguously states that a court “may assess costs of litigation and reasonable attorney fees incurred by a plaintiff ... who substantially prevails in an action” against members of “a governmental body.” Id. Finally, the Whistleblower Act expressly provides for waiver of immunity and for recovery of attorneys’ fees. See id. §§ 554.001-.009. If a state agency or local government suspends, terminates, or discriminates against a public employee who has reported a law violation, the employee is entitled to sue for injunctive relief, actual and, exemplary damages, court costs, and “reasonable attorneys’ fees.” 1 Id. §§ 554.002, 554.003(a). There are other examples in which the Legislature has expressly authorized the recovery of attorneys’ fees or costs from a governmental entity. See, e.g., Tex. Civ.PRAC. & Rem.Code § 105.002; id. § 106.002(b). The Legislature’s specificity of language in the Open Government Act and the Whistleblower Act sharply contrasts with the general provisions the Court relies on in this case for awarding attorneys’ fees under the DJA.

Another flaw with the Court’s reasoning regarding attorneys’ fees is the possible result: the imposition of a $400,000 burden on Texas taxpayers which the Legislature never envisioned when it passed the DJA. Holding that the DJA waives sovereign immunity to the extent of allowing an award of attorneys’ fees in this case could “divert money from the schools and would thereby impair the quality and availability of public education.” Duson v. Midland County Indep. Sch. Dist., 627 S.W.2d 428, 429 (Tex.Civ.App.-El Paso 1981, no writ) (affirming the nonapplicability of the Texas Tort Claims Act to public school districts). Unless the plaintiffs are required to obtain a legislative appropriation to collect the $400,000 judgment, the potential drain of tax dollars to pay attorneys’ fees from funds earmarked for education cannot be minimized. 2 In today’s litigious society, suits against school districts over dress codes, school prayer, sex education, cheerleader selections, and the like are not uncommon. Such litigation drains scarce funds and diverts the energies of school officials from the task of education. Because of the tremendous costs associated with litigating these issues, some school districts will decide to compromise on matters of principle rather than go to court and defend them. Unless the Legislature revisits the issue of governmental immunity from attorneys’ fees and court costs, to correct the Court’s holding in this case, there is the potential of a further drain on scarce educational dollars.

The Court’s opinion (although not its judgment) approves the trial court’s order that the Texas Education Agency exclusively pay the plaintiffs’ attorneys’ fees, in theory to relieve the defendant school districts from the burden of paying them. The effect is the same. Whether the trial court orders the TEA or each district to pay the award of attorneys’ fees, school districts will be deprived of money intended for education.

For these reasons, I would withdraw the opinion of the Court and grant the motion for rehearing. A new opinion addressing the issue of the award of attorneys’ fees and court costs under 42 U.S.C. § 1983 is prefer *450 able to the current opinion, which stands the law of sovereign immunity on its head.

. Even then, it may take a legislative appropriation to collect a judgment from the state. See Green v. Sharp, 37 Tex.Sup.Ct.J. 1227 (Sept. 29, 1994) (orig. proceeding) (overruling motion for leave to file a petition for writ of mandamus to compel the Comptroller of Public Accounts to issue a check from the state treasury to satisfy a judgment against the Texas Department of Human Services); Texas Dep’t of Human Servs. v. Green, 855 S.W.2d 136, 145 (Tex.App.-Austin 1993, writ denied) (stating that the prevailing plaintiff must request a legislative appropriation to collect damages awarded him under the Whis-tleblower Act).

. For example, besides the $400,000 award for attorneys’ fees and court costs from public school funds in this case, a trial court in another case recently awarded $48,000 to the attorneys of an elementary school student who challenged the hair grooming regulations of the school district he was attending. See Gamboa, Judge Rules in Favor of Bashop Student and His Ponytail, Austin Am. Statesman. Feb. 11, 1995, at Bl.