Bagg v. University of Texas Medical Branch at Galveston

• Decision Date: 08 January 1987
• Docket Number: No. A14-86-520-CV,A14-86-520-CV
• Citation: 726 S.W.2d 582
• Parties: 38 Ed. Law Rep. 831 James E. BAGG, Jr., Appellant, v. The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Robert M. Brecht, Michael Manheimer, Shelagh M. Yospur, and Catherine Contreras, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 582

726 S.W.2d 582

38 Ed. Law Rep. 831

James E. BAGG, Jr., Appellant, v. The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Robert M. Brecht, Michael Manheimer, Shelagh M. Yospur and Catherine Contreras, Appellees.

No. A14-86-520-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 8, 1987.

Rehearing Denied March 12, 1987.

David M. Feldman and Gary Endelman, Houston, for appellant.

Jim Mattox, Austin, and J.L. Covington, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

OPINION

ROBERTSON, Justice.

This suit arises out of the termination of employment of James E. Bagg, Jr., appellant, from the University of Texas Medical Branch at Galveston (UTMB) in August 1983. Pleading a variety of causes of action against UTMB and several individual defendants, including an action based on 42 U.S.C. § 1983 (Civil Rights Act of 1871), appellant sought both damages and reinstatement with back pay. Appellees sought and were granted dismissal of all of appellant's claims. We affirm the dismissal of UTMB and reverse the dismissal and summary judgment in favor of the individual defendants.

The procedural history in this case is somewhat complicated. On May 6, 1983, appellant was notified that he would be discharged from UTMB effective August 31, 1983. On August 2, 1983, he filed a petition for injunctive and monetary relief asking the trial court to enjoin UTMB and appellees Robert M. Brecht and Michael Manheimer, appellant's supervisors, from dismissing him. A temporary restraining order was denied at an August 25, 1983, hearing. It appears the case was inactive until April 3, 1984, when appellant amended his petition. Appellees answered with an amended answer, special exceptions and a plea in abatement urging the court to find that it had no jurisdiction to hear the suit because all defendants were immune from suit.

In July 1985 appellees sought a protective order to postpone depositions scheduled by appellant until the court could hear appellees' special exceptions and plea in abatement. After a hearing, a protective order was granted and signed August 12, 1985. That order included a provision that "permitted" appellant "fifteen (15) days to replead his petition in response to the special exceptions and/or plea in abatement" and appellees "ten (10) days thereafter to file an amended answer;" then "all parties are thereafter permitted five (5) days to set a hearing on any unresolved immunity issues."

Appellant did replead, but only to add allegations that various actions were "done maliciously and in bad faith, and with full knowledge of their unlawful nature." Appellees set their special exceptions and plea in abatement for a November 18, 1985, hearing. (None of these pleadings were filed within the time frame set in the August 12 order.)

Our record contains no statement of facts recording the November 18, 1985, hearing. The briefs and record indicate that at that hearing appellant complained that the evidence appellees were attempting to present in support of their plea in abatement should be brought in conjunction with a motion for summary judgment. A short time after the hearing, a motion for summary judgment was filed, and, still later, affidavits in support of the summary judgment were submitted. Appellant also filed affidavits. Both parties briefed the trial court with legal memoranda. On March 3, 1986, the court signed the order dismissing all appellant's actions.

Appellant's complaints against UTMB, Brecht, and Manheimer were these: After some 12 years of employment at UTMB, Manheimer and Brecht fired him. The stated reason for dismissal was that budgetary shortfalls necessitated the elimination of appellant's position. Appellant alleged that the budget cuts were a mere "subterfuge" and that he was dismissed, at least in part, in retaliation for representing a fellow employee in an earlier grievance proceeding. Appellant further alleged that he had a contract of employment with UTMB consisting of a "Personnel Policy Manual" and an "Employee Handbook." He alleged that UTMB, Brecht, and Manheimer failed to follow UTMB's policies when they fired him without cause and without first utilizing progressive disciplinary procedures. He also alleged that the same defendants ignored UTMB's promises made in the "Employee Handbook" that "In the event of a reduction in force or a layoff the employee with the greatest length of service will be retained, all things being equal."

Additionally, appellant alleged that two co-workers, Shelagh M. Yospur and Catherine Contreras, under the instructions of Brecht and Manheimer, "intercepted" some of his private telephone conversations.

Appellant sought damages from UTMB for breach of his employment contract. He sought damages and equitable relief from UTMB for committing so-called constitutional torts ¹ when it terminated him without following disciplinary procedures that would amount to due process and when it retaliated against appellant for exercising his rights to free speech (by representing a fellow employee). He also alleged that UTMB violated article 5154c, a portion of Texas' right-to-work statute. Tex.Rev.Civ.Stat. art. 5154c (Vernon 1971).

All claims against UTMB were dismissed when the court granted UTMB's plea in abatement holding that it had no jurisdiction over UTMB. Appellant attacks this holding in his first point of error.

We hold the trial court properly dismissed appellant's action against UTMB. UTMB is clearly a state agency entitled to the same sovereign immunity enjoyed by the State of Texas. The Medical Branch is part of the University of Texas System. Tex.Educ.Code Ann. §§ 65.02(a)8, 74.001 (Vernon 1972 & Supp.1986). Branches of the University of Texas and other state universities have been held to be agencies of the State of Texas and to enjoy sovereign immunity. E.g., Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976); Morris v. Nowotny, 323 S.W.2d 301 (Tex.Civ.App.--Austin 1959, writ ref'd n.r.e.), cert. denied, 361 U.S. 889, 80 S.Ct. 164, 4 L.Ed.2d 124 (1959).

A party must have legislative consent or statutory authorization before it can maintain a suit and recover a judgment that will operate to control state action, subject the state to liability, or affect the state's property rights and interests. Director of the Department of Agriculture & Environment v. Printing Industries Association, 600 S.W.2d 264 (Tex.1980).

Clearly, UTMB is immune from being sued for the damages appellant seeks. Appellant also prayed for equitable relief, in particular, an injunction ordering UTMB to reinstate him to his position with back pay. Appellant argues that this portion of his suit is an action by a person whose rights have been violated by the unlawful action of state officials. Such a person is allowed to bring suit to remedy the violation or prevent its occurrence. Id. at 265-66. The question remains whether such a plaintiff is allowed to bring his suit against a state agency rather than the individual officials who have allegedly violated his rights. We hold that when a plaintiff seeks injunctive relief that involves an activity of a state agency he must sue some individual in authority at that agency; he may not sue the agency itself. ²

We arrive at this conclusion after examining supreme court opinions that distinguish between suits that seek to control the action of the state from suits that seek to control unlawful actions by state officials. In Short v. W.T. Carter & Brother, 133 Tex. 202, 126 S.W.2d 953 (1938), the plaintiff, who owned record title to more than 3,000 acres of land, sought to enjoin the state Commissioner of the General Land Office from issuing mineral leases to certain individuals. The plaintiff based his suit on the theory that the commissioner had no authority to issue those leases. After carefully interpreting the relevant statutes, the supreme court concluded that the commissioner did have statutory authority to decide who would be awarded mineral leases to the land. Next, the court concluded that since the commissioner was acting within the scope of his authority, a suit seeking to enjoin issuance of the leases was in effect a suit against the state that could not be maintained unless the state had consented to be sued. Id., 126 S.W.2d at 962. The same mode of analysis was used in Printing Industries Association, 600 S.W.2d at 270; and Bullock v. Hardin, 578 S.W.2d 550 (Tex.Civ.App.--Austin 1979, writ ref'd n.r.e.).

In contrast, the supreme court has held that when the alleged actions of the state official are not within his legal authority, then a suit to enjoin those actions is not considered a suit against the state. A plaintiff can maintain an action seeking to enjoin state officials from trespassing on land allegedly owned by plaintiff. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960). A plaintiff can maintain a trespass to try title suit against individual state officials even when those officials assert rights of use and occupancy only as state officials and employees, acting for and on behalf of the state, and claim no right of use and occupancy as individuals. State v. Lain, 162 Tex. 549, 349 S.W.2d 579 (1961).

"The question is not whether respondents (state officials) were acting on behalf of the State to accomplish a proper governmental purpose but whether the action they were about to take is authorized by law." Griffin v. Hawn, 341 S.W.2d at 153.

The acts of officials which are not lawfully authorized are not acts of the State, and an action against the officials by one whose rights have been invaded or violated by such acts, for the determination and protection of his rights, is not a suit against the State within the rule of immunity of the State from suit.

Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945) (suit for declaratory judgment).

Appellant's suit depends upon the premise that the alleged actions of Brecht and Manheimer...