Griffin v. Hawn
| Decision Date | 23 November 1960 |
| Docket Number | No. A-7819,A-7819 |
| Citation | 341 S.W.2d 151,161 Tex. 422 |
| Parties | McNelll GRIFFIN et al., Petitioners, v. C. F. HAWN et al., Respondents. |
| Court | Texas Supreme Court |
Byron L. McClellan, Gatesville, H. A. Leaverton, Evant, Black & Stayton, Austin, for petitioners.
R. Mears, County Atty., Gatesville, for Coryell County.
Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins, Watson C. Arnold, Wm. T. Blackburn and Ralph Rash, Austin, for C. F. Hawn and Highway Commissioners.
The question to be decided in this appeal is whether the action was properly dismissed as being a suit against the State of Texas without legislative consent. Suit was originally instituted by McNeill Griffin and C. J. Griffin, petitioners, against the State of Texas and Coryell County to restrain the defendants from trespassing on a tract of land alleged to be owned by petitioners and from injuring such land or the improvements thereon. The State asserted its immunity and an order was entered by the trial court dismissing it as a defendant. Before action was taken on such plea, however, petitioners amended and eliminated the State as a party. The defendants named in the amended petition are Coryell County, its County Judge, County Commissioners and Sheriff, the members of the State Highway Commission, and the State Highway Engineer.
Each of such officers was sued individually and in his official capacity, and petitioners prayed that the defendants be enjoined from entering upon the land or damaging the improvements thereon. The members of the Highway Commission and the Highway Engineer, who are respondents here, filed pleas to the jurisdiction and in abatement asserting that the action as to them is a suit against the State of Texas and that legislative consent has not been obtained. A disclaimer on behalf of Coryell County and its officials was announced to the court by the County Attorney. The trial court sustained the pleas to the jurisdiction and in abatement, granted the disclaimer, dissolved the restraining order previously issued, and dismissed the suit. The Court of Civil Appeals affirmed in so far as the State Highway Commissioners and Engineer are concerned, but reversed the judgment of the trial court and remanded the cause as to Coryell County and its officials. 334 S.W.2d 495.
The partial reversal and remand has not been questioned here, but petitioners contend that the courts below erred in holding that an action to restrain an unauthorized trespass by officials of the State Highway Department is a suit against the State within the rule of immunity. The Court of Civil Appeals reasoned that although it was alleged in general terms that the threatened action is without authority, in reality petitioners are seeking to prevent the exercise by the State of an act of sovereignty: the construction of a highway. It said that the pleas of the state officers were properly sustained because the suit against them is to prevent performance by the State of functions of sovereignty through its officials. We do not agree.
Where the purpose of a proceeding against state officials is to control action of the State or subject it to liability, the suit is against the State and cannot be maintained without the consent of the Legislature. W. D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838; Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S.W. 813; Short v. W. T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953; Walsh v. University of Texas, Tex.Civ.App., 169 S.W.2d 993 (wr. ref.). The present case is governed, however, by the following rule announced in Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712, 172 A.L.R. 837:
'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 or protection of his rights, is not a suit against the State within the rule of immunity of the State from suit.'
Petitioners alleged that they are the lawful owners and entitled to possession of the land in question, and that the defendants,...
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