Mino v. University of Houston, No. 03-03-00311-CV (TX 10/14/2004)
| Decision Date | 14 October 2004 |
| Docket Number | No. 03-03-00311-CV.,03-03-00311-CV. |
| Parties | WOLFGANG HIRCZY DE MINO, Appellant v. THE UNIVERSITY OF HOUSTON, Appellee. |
| Court | Texas Supreme Court |
Appeal from the District Court of Travis County, 98th Judicial District, No. GN204624, Honorable Margaret A. Cooper, Judge Presiding.
Modified and, as Modified, Affirmed.
Before Chief Justice LAW, Justices B. A. SMITH and PATTERSON.
Appellant Dr. Wolfgang Hirczy de Mino1 appeals from the trial court's dismissal with prejudice of his breach of contract action against appellee University of Houston. We will modify the judgment to reflect a dismissal without prejudice, and as modified, affirm.
From August 1997 to August 2001, Hirczy de Mino was employed as a lecturer at the University of Houston. Hirczy de Mino was employed under a series of one-semester contracts. In August 2001, Hirczy de Mino was notified that his contract would not be renewed for the fall 2001 semester.2 In December 2002, Hirczy de Mino filed suit for breach of contract in Travis County. The University filed a plea to the jurisdiction based on sovereign immunity. A hearing was held on the plea; Hirczy de Mino waived his right to appear in person. The trial court dismissed the suit with prejudice.
As a general rule, the State of Texas and its governmental units are immune from suits for money damages unless the legislature has expressly consented to the suit. General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). When a governmental unit contracts with a private citizen, it generally retains immunity from suit even though it waives immunity from liability. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 (Tex. 1997). Generally, a party seeking redress against a governmental unit for breach of contract must establish legislative consent to sue by bringing suit under a special statute or obtaining a legislative resolution. Little-Tex, 39 S.W.3d at 596; see Tex. Civ. Prac. & Rem. Code Ann. § 107.002 (West 1997). In the absence of a waiver of governmental immunity, a court has no subject matter jurisdiction to entertain a suit against a governmental unit. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.-Austin 2000, no pet.). In order to prevail, the party asserting the plea to the jurisdiction must show that even if all of the allegations in the plaintiff's pleadings are taken as true, an incurable jurisdictional defect is apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. Id. Because subject-matter jurisdiction presents a question of law, we review the district court's decision de novo. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Caldwell, 23 S.W.3d at 135.
In reviewing a trial court's ruling on a plea to the jurisdiction, we do not look at the merits of the case; instead, we "construe the pleadings in favor of the plaintiff," looking to the pleader's intent and accepting the factual allegations as true. Caldwell, 23 S.W.3d at 135. "The truth of the plaintiff's allegations is at issue only if the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court." Id. Further, "a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 224; Jones, 8 S.W.3d at 638-39 (Tex. 1999).
Hirczy de Mino argues that his breach of contract claim was properly before the trial court because the Legislature waived the University's sovereign immunity through the "sue and be sued" language of section 111.33 of the Texas Education Code. Hirczy de Mino relies on Fazekas v. University of Houston, which held that section 111.33 provided legislative consent for a professor's breach of contract suit against the University. See 565 S.W.2d 299, 302 (Tex. App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.).
After Fazekas was decided, however, the Legislature amended section 111.33 to add the last sentence of the applicable version:
The board [of regents] has the power to sue and be sued in the name of the University of Houston. Venue shall be in either Harris County or Travis County. The University shall be impleaded by service of citation on the president or any of its vice presidents. Nothing in this section shall be construed as granting legislative consent for suits against the board, the University of Houston System, or its component institutions and entities except as authorized by law.
Tex. Educ. Code Ann. § 111.33 (West 2002); see Freedman v. University of Houston, 110 S.W.2d 504, 507-08 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (discussing post-Fazekas amendment and holding professor's suit against University of Houston barred by sovereign immunity).
We construe statutes as written and, if possible, ascertain legislative intent from the statute's language. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). We begin with the plain language of the statute because we assume that the Legislature tries to say what it means. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999); Villanueva v. Gonzalez, 123 S.W.3d 461, 465 (Tex. App.-San Antonio 2003, no pet.). Even when a statute is not ambiguous, however, we consider other factors to determine the Legislature's intent such as the object sought to be attained, the legislative history, and the consequences of a particular construction. Tex. Gov't Code Ann. § 311.023 (West 1998); Helena Chem. Co., 47 S.W.3d at 493; Hageman v. Luth, No. 03-03-081-CV, slip op. at 10, 2004 Tex. App. LEXIS 5566, at *16-17 (Tex. App.-Austin June 24, 2004, no pet.).
The legislative history of the amendment supports the proposition that the legislature intended to alter the result of Fazekas. The bill analysis for H.B. 1182 refers to the 1978 court opinion holding that the System had waived its sovereign immunity, and "was open to suit without authorization of law." House Comm. on Higher Educ., Bill Analysis, Tex. H.B. 1182, 69th Leg., R.S. (1985). The analysis further states, "The University of Houston must make clear its possession of sovereign immunity as a state agency." Id. In a higher education committee meeting discussing the bill, the chair noted:
[House Bill 1182] simply allows the University of Houston System to do the same thing that essentially is available for other institutions of higher education and that is to say that, uh, suits cannot be filed against the university without legislative permission . . . .
My understanding is that this is pretty generally available to other institutions and really gives the University of Houston the same status that other institutions have.
Laying Out & Recommendation Concerning House Bill 1182, House Comm. on Higher Education, 69th Leg., R.S., (Mar. 18, 1985). The legislative history comports with the language of the statute that the section should not be construed as granting consent for suits against the University.
Accordingly, Hirczy de Mino cannot rely on section 111.33 as a waiver of sovereign immunity. His suit is barred unless he can show it is "authorized by law"or some exception to the doctrine of sovereign immunity applies. We overrule issues one and two.
Hirczy de Mino contends that he pleaded the "waiver by conduct" exception to sovereign immunity, and so the plea to the jurisdiction was erroneously granted. He argues that the Texas Supreme Court left open the question of waiver by conduct in its decision in Federal Sign. See 951 S.W.2d at 408 n.1. However, this argument has been effectively foreclosed by recent supreme court decisions. See, e.g., Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 857 (Tex. 2002). This Court recently noted that since IT-Davy, it has only recognized a waiver of immunity in contract cases when the State has first sued the contracting party. Smith v. Lutz, No. 03-04-00074-CV, slip op. at 8, 2004 Tex. App. LEXIS 5081, at *12-13 (Tex. App.-Austin June 10, 2004, no pet.); State v. Fidelity & Deposit Co. of Maryland, 127 S.W.3d 339, 343-44 (Tex. App.-Austin 2004, pet. filed) ; see also Reata Constr. Corp. v. City of Dallas, 47 Tex. Sup. Ct. J. 408, 409, 2004 Tex. LEXIS 303, at *6-8 (Apr. 2, 2004); Kinnear v. Texas Comm'n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000). In Lutz, this Court concluded: "We await further guidance from the supreme court on what additional conduct might be sufficiently egregious to waive the State's immunity from suit." Lutz, slip op. at 8, *12-13 (footnote omitted). Similarly, we decline in ths case to re-visit the "waiver by conduct" exception. We overrule issue seven.
Hirczy de Mino also contends that if amended Education Code section 111.33 repealed its former waiver of sovereign immunity, that repeal was an unconstitutional violation of the Texas Open Courts Provision. "All courts shall be open, and every person for an injury done him, in his lands, good,...
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