Perry v. Texas A & I University
| Decision Date | 28 August 1987 |
| Docket Number | No. 13-86-446-CV,13-86-446-CV |
| Citation | 737 S.W.2d 106 |
| Parties | 42 Ed. Law Rep. 454 Susan L. PERRY, Appellant, v. TEXAS A & I UNIVERSITY and Eliseo Torres, Appellees. |
| Court | Texas Court of Appeals |
William J. Kolb, Corpus Christi, for appellant.
Lou Bright, Asst. Atty. Gen., Austin, for appellees.
Before DORSEY, UTTER, and KENNEDY, JJ.
This action for damages was brought by Susan L. Perry, a counselor at Texas A & I University, against the University and its president, Eliseo Torres, arising from the abolition of the position held by Ms. Perry and the refusal of Mr. Torres to refer the dispute to the administrative grievance procedures. Ms. Perry alleged that because of such actions her livelihood was taken from her and her position abolished without due process of law in violation of her rights under the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. The action was brought pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252-26 (now codified as Tex.Civ.Prac. & Rems.Code Ann. § 104.002 (Vernon 1987)). The plaintiff alleged that former Article 6252-26 embodies legislative consent to the suit. She sought damages from both defendants jointly and severally. There were no pleadings for relief under 42 U.S.C. § 1983.
In their answer, the defendants moved to transfer venue, pled to the court's jurisdiction by alleging that both defendants were shielded from suit by sovereign immunity, and denied generally the allegations of plaintiff's original petition. The plea to the jurisdiction alleged that the University was an agency of the State of Texas, that an action against the University was indeed an action against the State and was barred by the doctrine of sovereign immunity absent legislative authorization. The defendant Torres pled that he was immune from suit on two bases: that the action is against him in his "official" capacity and, as such, is in substance against the State of Texas, and that at all times he was acting within the course and scope of his employment as interim president of the University, and thus is protected by "individual" immunity and, as such, the plaintiff's claims against him are barred. After receiving briefs from the parties, the learned trial judge granted defendants' pleas to the jurisdiction and dismissed the action, from which Ms. Perry has perfected her appeal.
The motion to dismiss for want of jurisdiction, which was granted, addressed solely the immunity of the University as an agency of the government and the immunity of Dr. Torres. Therefore, the issues before us are restricted to the question of the application of the principles of governmental immunity to these defendants and not whether any cause of action for damages arises from the allegations of constitutional violations.
In addressing the issue of immunity from suit, it is critical to recognize that the action is one for damages and not one seeking injunctive relief for access to the grievance procedure by the plaintiff. In her action, the plaintiff seeks to hold the University, and through it the State of Texas, jointly and severally liable with Dr. Torres for monetary damages. Although both defendants maintain that they are entitled to the immunity from suit traditionally granted to the sovereign, each defendant's status requires a different analysis.
Texas A & I University is part of the State University System. Tex.Educ.Code Ann. §§ 104.01, 104.21 (Vernon Supp.1987). Branches of the University of Texas and other state universities are agencies of the State and thus are entitled to the same governmental immunity from suit or liability as the State of Texas. E.g., Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976).
Appellant brings two arguments why the trial court's granting the plea to the jurisdiction is incorrect: that legislative consent to the suit has been granted by Article 6252-26, and that it is not necessary to obtain the consent of the sovereign to sue when the suit is to obtain redress for the deprivation of constitutional or property rights.
Section 104.002 of the Texas Civil Practices and Remedies Code (Vernon 1986), formerly Article 6252-26 provides:
The State is liable under this chapter only if the damages are based on an act or omission by the person in the course and scope of the person's office, employment, or contractual performance for or service on behalf of the agency, institution, or department and if:
* * *
* * *
(2) the damages arise out of a cause of action for deprivation of a right, privilege, or immunity secured by the constitution or laws of this State or the United States, except when the court in its judgment or the jury in its verdict finds that the person acted in bad faith.
Further, Section 104.008 specifically states that this statute does not waive a defense, immunity, or jurisdictional bar to the State or its officers.
This section of the Code does not provide legislative consent to appellant's suit against the State. We agree with the Austin Court of Appeals in Texas Employment Commission v. Camarena, 710 S.W.2d 665 (Tex.App.--Austin, 1986, no writ), which held that the statute is primarily for the benefit of employees and officers of the State who have been held liable for damages. The statute specifically states that liability arises when the officer or employee is adjudged liable to the claimant. Tex.Civ.Prac. & Rems.Code Ann. § 104.001 (Vernon 1986). The statute is for the indemnification of employees and does not create a cause of action nor waive immunity to an action by one who was allegedly injured by the actions of an officer or employee of the State.
It is a settled proposition that a claimant may not maintain an action that seeks to control the action of the State or subject it to liability without legislative consent. Director of the Department of Agriculture v. Printing Industries Association, 600 S.W.2d 264 (Tex.1980); Griffin v. Hawn, 341 S.W.2d 151 (Tex.1960). Appellant urges that when a violation of constitutional or property rights is alleged, the courts have a right to review the acts of legislative and administrative bodies, citing City of...
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