Department of Public Safety of Tex. v. Great Southwest Warehouses, Inc.

• Decision Date: 06 December 1961
• Docket Number: No. 10896,10896
• Parties: DEPARTMENT OF PUBLIC SAFETY OF TEXAS et al., Appellants, v. GREAT SOUTHWEST WAREHOUSES, INC., Appellee.
• Court: Texas Court of Appeals

Page 493

352 S.W.2d 493

DEPARTMENT OF PUBLIC SAFETY OF TEXAS et al., Appellants, v. GREAT SOUTHWEST WAREHOUSES, INC., Appellee.

No. 10896.

Court of Civil Appeals of Texas, Austin.

Dec. 6, 1961.

Rehearing Denied Jan. 3, 1962.

Will Wilson, Atty. Gen., Morgan Nesbitt, Asst. Atty. Gen., for appellants.

Phinney, Hallman & Pulley, Dallas, for appellee.

RICHARDS, Justice.

The majority opinion delivered on November 15, 1961 is withdrawn and the following opinion is substituted:

Suit was brought by Great Southwest Warehouses, Inc., appellee, against the Department of Public Safety of Texas, a State agency, the Chairman and members thereof and its Director, in their official capacities, appellants, for a declaratory judgment under the provisions of Art. 2524-1, Vernon's Civil Statutes, construing Art. 911b, V.C.S. (the Texas Motor Carrier Act), and specifically 1(g) thereof defining the term 'motor carrier,' to determine whether such term as used in the Act includes and should be applied to motor carriers operating for hire between contiguous incorporated cities and towns and therefore subject to the Motor Carrier Act under the jurisdiction of the Railroad Commission of Texas, even though in the course of the journey from one city to another no unincorporated areas are traversed. Appellants answered only by a general denial.

Upon hearing the Trial Court held that such operations are excluded from the regulatory provisions of the Motor Carrier Act and that no certificate of Public convenience and necessity or other authority from the Railroad Commission is required for such transportation operations, from which judgment this appeal is taken.

It is fundamental law that an action against a State agency or department is a suit against the State where the agency is exercising only governmental functions, Stephens v. Texas & Pac. Ry. Co., 100 Tex. 177, 97 S.W. 309, 312; Short v. W. T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953, 962, and that the State, like any other sovereignty, may not be sued without its consent which may only be obtained by legislative permission. Hosner v. De Young, 1 Tex. 764; State v. Isbell, 127 Tex. 399, 94 S.W.2d 423. ¹ The rule of State immunity from suit without its consent applies to suits under the Uniform Declaratory Judgments Act, Art. 2524-1, V.C.S., W. D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 839.

The Department of Public Safety being charged with the administration and enforcement of the Texas Motor Carrier Act (Art. 911b, V.C.S. and Art. 1690b, Vernon's Ann.P.C.), the suit is against a State agency and its officers to determine whether the State acting through such officers is properly exercising acts of sovereignty, that is, whether appellee should be required to obtain a certificate of public convenience and necessity to operate as a motor carrier between contiguous incorporated cities even though in the course of such journeys no unincorporated areas are traversed.

When this appeal was submitted and argued the Assistant Attorney General representing appellants stated in effect that appellants had made no threats to enforce either the civil or penal provisions of the Motor Carrier Act against appellee and that appellants would not attempt to do so during the pendency of this suit. He also admitted that the failure to raise the fundamental issue of the State's immunity from suit by pleas in abatement and to the jurisdiction in the Trial Court was because appellants had requested that the State's right to immunity from suit should not be raised or pleaded.

Art. 4411, V.C.S., prohibits the Attorney General as the official legal representative of the State or any agency thereof in any suit in which the State is a party from making any admission, agreement or waiver which would prejudice the rights of the State. Therefore even though requested by appellants to waive the fundamental right of the State to plead its immunity from suit, such right could not be prejudiced by the act of the Attorney General in failing to assert it. There is no contention by either of the parties that legislative consent to institute this action has been obtained. Unless legally authorized it is elementary that the entry of appearance of the State by the Attorney General in filing an answer consisting only of a general denial would not confer jurisdiction upon the Trial Court to hear the cause since only the Legislature may authorize a suit against the State. State v. Gulf Oil Co., Tex.Civ.App., 166 S.W.2d 197, 200 (no writ history).

The identical question of statutory construction and interpretation involved herein was presented in Law v. Texas Delivery Service, Inc., Tex.Civ.App., 335 S.W.2d 653 (error ref., N.R.E.), in a suit for declaratory judgment and injunction brought against the officials and employees of the Texas Department of Public Safety in their official capacities. Pleas in abatement and to the jurisdiction filed by the defendants were overruled by the Trial Court, who entered a delcaratory judgment similar in effect to the judgment herein entered and in addition enjoined the officials of the Department of Public Safety from interfering with the operations of the appellee. On appeal the Trial Court's judgment was reversed and rendered and the cause of action was dismissed. On motion for rehearing the Court of Civil Appeals held that if the State instituted criminal proceedings under Art. 1690b, Secs. (a) and (b), V.P.C., or if the State elected to file a civil action for injunction pursuant to Art. 1690b, Sec. (c) V.P.C., appellee could urge its defenses therein.

Here a situation is presented where two suits, each brought pursuant to the Uniform Declaratory Judgments Act, against the Department of Public Safety and its officials in their official capacities involve the identical question of statutory interpretation or construction of the Motor Carrier Act. In the first suit the officials of the Texas Department of Public Safety urged pleas to the jurisdiction and in abatement, while in the instant suit, at the request of the same officials, the substantive rights of the State's immunity from suit are not presented but are expressly waived by the Attorney General contrary to the provisions of Art. 4411, V.C.S.

As stated above, it is a rule of universal application that a State cannot be sued without its consent, which consent can only be granted by legislative enactment. As was said by the Supreme...