concluding that the court of appeals erred by allowing the plaintiff the opportunity to re-plead when it was apparent that the plaintiff had failed to exhaust its administrative remedies before suing and the governmental entity was immune from a breach of contract claim
How later courts described this case
- concluding that the court of appeals erred by allowing the plaintiff the opportunity to re-plead when it was apparent that the plaintiff had failed to exhaust its administrative remedies before suing and the governmental entity was immune from a breach of contract claim
- explaining “it is the federal regulations about DBEs with which TxDOT had to comply to receive federal funding for the project”
- noting that all parties involved in a construction project may not necessarily be bound by the satisfaction clause
- “Given the general principle that the court may not reweigh the evidence and substitute its own judgment for that of the agency, the APA anticipates that the court will generally remand to the agency when it finds an error of law.”
Written by the judges who cited it.
The opinion
Justice ENOCH
filed an opinion concurring in part and dissenting in part.
I do not take issue with the standard that the Court concludes the Administrative Law Judge should apply to this claim. Jones initiated the administrative proceedings under the Transportation Code, and I agree with the Court that this case need not be remanded for review under a different standard. But I disagree with the Court’s holding that the Transportation Code provides the exclusive remedy for breach of contract claims against the Texas Department of Transportation. The statutory provision allowing for an administrative remedy in this case 1 is substantially similar to the provisions at issue in General Services Commission v. Little- *486 Tex InsulUtion Co. 2 Therefore, for the reasons expressed in my dissent in Little-Tex, I respectfully dissent from that part of the Court’s judgment dismissing Jones’ common-law breach of contract and declaratory judgment claims.
It is a fair question to ask why I continue dissenting from this Court’s sovereign immunity jurisprudence concerning contracts when the Court so clearly decided this issue in Federal Sign v. Texas Southern University 3 and Texas Natural Resource Conservation Commission v. IT— Davy, 74 S.W.3d 849 (Tex.2002). 4 Simply, these cases were wrongly decided, the damage wreaked continues unabated, and the full cost remains untotalled.
The List continues to grow. 5 As to the Court’s sovereign immunity holding, I respectfully dissent — again.
. See Tex. Transp. Code § 201.112.
. 39 S.W.3d 591 (Tex.2001).
. 951 S.W.2d 401 (Tex.1997)
. 74 S.W.3d 849 (Tex.2002).
. See Tex. Dep’t of Transp. v. Jones Bros. Dirt & Paving Contractors, Inc., 92 S.W.3d 477 (Tex.2002); Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex.2002); TNRCC v. IT-Davy, 74 S.W.3d 849 (Tex.2002); Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex.2001); Tex. Dep’t of Transp. v. Aer-Aerotron, Inc., 39 S.W.3d 220 (Tex. 2001); Federal Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex.1997); Tex. Dep’t of Pub. Safety v. Int’l Capital Corp., 40 S.W.3d 687 (Tex.App.-Austin 2001, no pet.); Denver City Ind. Sch. Dist. v. Moses, 51 S.W.3d 386 (Tex.App.-Amarillo 2001, no pet.); Gendreau v. Medical Arts Hosp., 54 S.W.3d 877 (Tex.App.-Eastland 2001, pet. filed); City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Tex. Dept, of Pub. Safety v. Rivera, No. 13-01-00446-CV, 2001 Tex.App. LEXIS 7681 (Corpus Christi Nov. 15, 2001, no pet.) (not designated for publication); Landry’s Crab Shack v. Bd. of Regents, No. 03-00-00690-CV, 2001 WL 1240832 , 2001 Tex.App. LEXIS 6948 (Austin Oct. 18, 2001, no pet.) (not designated for publication); Ondemir v. Bexar County Clerk, No. 04-00-00497-CV, 2001 WL 1136074 , 2001 Tex.App. LEXIS 6488 (San Antonio Sept. 26, 2001, pet. denied) (not designated for publication); O’Dell v. Perry, No. 03-00-00603-CV, 2001 WL 726387 , 2001 Tex.App. LEXIS 4367 (Austin June 29, 2001, no pet.) (not designated for publication); State DOT v. Ramirez, 72 S.W.3d 376 (Austin 2001, pet. filed) (not designated for publication); Tex. A & M Univ. Sys. v. AFEX Corp., No. 03-00-00222-CV, 2001 WL 193881 , 2001 Tex.App. LEXIS 1266 (Austin Mar. 1, 2001, no pet.) (not designated for publication).