Green Intern., Inc. v. State

• Decision Date: 18 May 1994
• Docket Number: No. 3-92-637-CV,3-92-637-CV
• Citation: 877 S.W.2d 428
• Parties: GREEN INTERNATIONAL, INC., formerly known as the Argee Corporation, Appellant, v. STATE of Texas, Texas Department of Criminal Justice, and Board of Criminal Justice, Appellees.
• Court: Texas Court of Appeals

Page 428

877 S.W.2d 428

GREEN INTERNATIONAL, INC., formerly known as the Argee Corporation, Appellant, v. STATE of Texas, Texas Department of Criminal Justice, and Board of Criminal Justice, Appellees.

No. 3-92-637-CV.

Court of Appeals of Texas Austin.

May 18, 1994.

Rehearing Overruled June 22, 1994.

George C. Baldwin, Lloyd, Gosselink, Fowler, Blevins & Mathews, P.C., Austin, for appellant.

Dan Morales, Atty. Gen., Julia Lacy Armstrong, Asst. Atty. Gen., Austin, for appellees.

Before POWERS, JONES and KIDD, JJ.

JONES, Justice.

Appellant, Green International, Inc., formerly known as the Argee Corporation ("Green"), brought suit against the State of Texas, Texas Department of Criminal Justice, and Board of Criminal Justice (collectively, the "State") for claims arising out of a construction project. The State filed a plea to the jurisdiction, asserting that sovereign immunity barred Green's suit. The trial court sustained the State's plea and dismissed the suit. After seeking and purportedly obtaining the State's consent, Green again filed suit against the State of Texas and the Texas Department of Criminal Justice. The State, however, disputed that consent had been given, because the Governor of Texas had vetoed the legislature's consent resolution. Accordingly, the State again filed a plea asserting sovereign immunity, and the Green brings a total of thirteen points of error in the two appeals. In the first appeal, Green asserts that the trial court erred in dismissing the suit because (1) no evidence was presented to support the State's plea to the jurisdiction; (2) the trial court determined disputed issues of material fact without hearing evidence and without observing the procedures for special exceptions or summary judgments; (3) disputed fact issues remain regarding Green's claims for taking, breach of contract, interference, and quantum meruit; (4) the trial court erred in not filing findings of fact or conclusions of law; (5) sovereign immunity does not bar Green's taking claim; (6) sovereign immunity cannot override the constitutional requirement for open courts; and (7) sovereign immunity does not bar Green's claims for breach of contract, interference, and quantum meruit. In the second appeal, ² Green asserts that (8) the governor's veto was ineffective because it was not executed in accordance with the procedure prescribed in the Texas Constitution; (9) the evidence is legally and factually insufficient to support a finding that the veto was effective; (10) conclusive evidence, or the great weight of the evidence, shows that the veto was invalid; (11) the veto was outside the bounds of the governor's authority; (12) the veto violated the separation-of-powers clause of the Texas Constitution; and (13) Green's causes of action override the doctrine of sovereign immunity.

                trial court dismissed Green's second suit.  Green appeals from both dismissals. 1  We will affirm
                

FACTUAL AND PROCEDURAL BACKGROUND

In 1988 and 1989, Green contracted with the State to build three prison units. According to its petitions, Green fully or substantially performed all work under the contracts and, in addition, performed other work outside the contracts that the State required. Nonetheless, the State refused to pay the amounts Green claimed were due and owing. ³

On February 3, 1992, Green filed its first suit against the State, claiming breach of contract, interference with its ability to perform under the contracts, taking without adequate compensation under the Texas and United States Constitutions, and quantum meruit. Green asserted that its right to bring suit was guaranteed by due process and by the "open courts" provision of the Texas Constitution. The State filed a plea to the jurisdiction. On October 27, 1992, the trial court dismissed Green's suit on the basis of sovereign immunity.

On May 28, 1993, the Texas House of Representatives passed House Concurrent Resolution 135 (the "Resolution"), granting Green "permission to sue the State of Texas and the Texas Department of Criminal Justice" for "breach of various contracts" enumerated On June 9, 1993, Green filed its second lawsuit against the State, again asserting claims for breach of contract, interference with its ability to perform under the contracts, taking without adequate compensation under the state and federal constitutions, and quantum meruit. On June 20, 1993, the governor signed Proclamation No. 41-2578 (the "Proclamation"), vetoing the Resolution. The Proclamation cited the following objections as the reason for the governor's veto:

in the Resolution. The Texas Senate approved the Resolution on May 29, 1993. The Resolution was enrolled and duly executed by the speaker of the house, the president of the senate, the chief clerk of the house, and the secretary of the senate on May 31, 1993.

This concurrent resolution would grant Green International permission to sue the State of Texas concerning construction contracts with the Texas Department of Criminal Justice. Due to the questionable nature of this lawsuit and the lack of appropriation to pay a judgment that might result from it, this resolution should be vetoed.

The same day, the governor delivered the Proclamation to the secretary of state. Attached to the Proclamation was a copy of the Resolution, absent its signature page, which apparently had been lost. On October 5, 1993, the trial court dismissed Green's second suit.

DISCUSSION

Sovereign Immunity

In its seventh point of error, Green asserts that in the first suit the trial court erred in dismissing its causes of action for breach of contract, interference, and quantum meruit because sovereign immunity should not bar such claims. Green argues that an action for breach of contract is well established at common law and that there is no justification for allowing the state immunity from suit on its contracts with private parties. Green also argues that whenever the state enters a contract, it waives all of its immunity. We disagree.

Sovereign immunity consists of two basic principles of law. First, unless waived, the state has immunity from liability. Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 425 (1936); see Tex.Civ.Prac. & Rem.Code Ann. § 107.002(b) (West Supp.1994) (legislative resolution granting permission to sue the state does not waive immunity from liability). Thus, "a state cannot be made liable to an action for the neglect or misfeasance of its officers, through which a person sustains injury, unless by statute the action is given." City of Galveston v. Posnainsky, 62 Tex. 118, 125 (1884). Second, the state as sovereign is immune from suit without consent even if there is no dispute regarding the state's liability. Missouri Pac. R.R., 453 S.W.2d at 813; see, e.g., Hosner v. De Young, 1 Tex. 764, 769 (1847); Board of Land Comm'rs v. Walling, Dallam 524, 525-26 (Tex.1843). The doctrine bars a suit against the state unless the state has expressly given its consent to be sued. See, e.g., Missouri Pac. R.R., 453 S.W.2d at 814 (statute creating navigation district stating that district can "sue and be sued in all courts of this state" is sufficient consent to sue state); Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. § 101.025 (West 1986) (person having claim under Tort Claims Act is granted permission to sue); Tex.Civ.Prac. & Rem.Code Ann. §§ 107.001-.005 (West Supp.1994) (describing effect of legislative resolution granting permission to sue state).

The state waives its immunity from liability when it enters into a contract:

It is well settled that so long as the state is engaged in making or enforcing laws, or in the discharge of any other governmental function, it is to be regarded as a sovereign, and has prerogatives which do not appertain to the individual citizen; but when it becomes a suitor in its own courts, or a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of an individual.

Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898). However, even though the state waives its immunity from liability when it The impotence of private individuals to enforce through the courts their contractual rights against the state, by reason of inability to sue the state without its consent, inheres in every such contract. This impotence, however, does not affect the binding force of state obligations; nor does it deprive the Legislature of the power to delegate to an appropriate agency authority to create binding contractual obligations against the state.

enters into a contract, it retains its immunity from suit. This Court has stated that:

Ferguson v. Johnson, 57 S.W.2d 372, 376 (Tex.Civ.App.--Austin 1933, writ dism'd); see also Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.--Austin 1991, writ denied) ("The state is still immune from suit sounding in contract, however, even though the state has consented to liability by the act of contracting."); State v. Elliott, 212 S.W. 695, 698 (Tex.Civ.App.--Galveston 1919, writ ref'd) ("Because of her sovereignty, the state is not amenable to the processes of courts, and cannot be sued therein, without her consent, but this in no way detracts from the proposition that she may be liable.").

We are concerned here with the State's immunity from suit, not its immunity from liability. In its first suit, Green did not allege that the State had consented to be sued. Therefore, immunity from suit deprived the court of jurisdiction over Green's claims for breach of contract, interference, and quantum meruit.

We are not unsympathetic to Green's argument that the state's immunity from suit should be deemed waived whenever immunity from liability has been waived. Nonetheless, even though the justifications for sovereign immunity have long been criticized, the waiver of sovereign immunity is a matter properly addressed...