Texas a & M University System v. Koseoglu

• Decision Date: 09 March 2005
• Docket Number: No. 10-03-00375-CV.,10-03-00375-CV.
• Citation: 167 S.W.3d 374
• Parties: TEXAS A & M UNIVERSITY SYSTEM, Texas Engineering Experiment Station and Dr. Mark McLellan, Appellants, v. Dr. Sefa KOSEOGLU, Appellee.
• Court: Texas Supreme Court

167 S.W.3d 374

TEXAS A & M UNIVERSITY SYSTEM, Texas Engineering Experiment Station and Dr. Mark McLellan, Appellants, v. Dr. Sefa KOSEOGLU, Appellee.

No. 10-03-00375-CV.

Court of Appeals of Texas, Waco.

March 9, 2005.

COPYRIGHT MATERIAL OMITTED

Robert F. Johnson, III, Asst. Atty. General, Austin, for state.

Wayne T. Rife, Law Office of Wayne T. Rife, College Station, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Sefa Koseoglu filed a breach of contract suit against the Texas A & M University System, the Texas Engineering Experiment Station, and his supervisor Mark McLellan contending that they breached a settlement agreement between Koseoglu and Texas A & M negotiated to resolve an employment dispute. Texas A & M¹ and McLellan filed pleas to the jurisdiction premised on sovereign immunity and pleaded the affirmative defense of sovereign immunity in their answers to Koseoglu's petition.

Koseoglu filed a motion for summary judgment asserting his entitlement to judgment as a matter of law on the merits of his contract claim and further contending that sovereign immunity was waived because of a denial of due process with respect to an employment contract he had with Texas A & M. After a hearing, the trial court denied Appellants' pleas to the jurisdiction. This interlocutory appeal ensued.

Appellants contend in their sole issue that sovereign immunity has not been waived. Koseoglu responds that sovereign immunity has been waived because: (1) Texas A & M accepted the benefits of the settlement agreement; and (2) the settlement agreement was reached to resolve Texas A & M's liability on a due process claim for which immunity from suit has been waived. Koseoglu contends, in the alternative, that he should be permitted an opportunity to amend his pleadings before his suit is dismissed.

Because no statute vests this Court with jurisdiction to consider McLellan's appeal, we will dismiss his portion of this appeal for want of jurisdiction. Because Koseoglu has failed to allege facts which demonstrate a waiver of sovereign immunity, we will reverse and remand as to Texas A & M.

This Court Does Not Have Jurisdiction To Review The Denial Of A Government Employee's Plea To The Jurisdiction Premised On Sovereign Immunity In An Interlocutory Appeal

"A party may not appeal an interlocutory order unless authorized by statute." Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001). The statute at issue here is section 51.014 of the Civil Practice and Remedies Code, which provides in pertinent part that an interlocutory appeal may be taken from an order which "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001."² TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2004-2005). Section 51.014 must "be strictly construed as `a narrow exception to the general rule that only final judgments and orders are appealable.'" Bally Total Fitness, 53 S.W.3d at 355 (quoting Montgomery County v. Fuqua, 22 S.W.3d 662, 665 (Tex.App.-Beaumont 2000, pet. denied)).

The Clerk of this Court notified McLellan by letter³ that his appeal from the denial of his plea to the jurisdiction appears subject to dismissal for want of jurisdiction because it is not authorized by statute. See Tex. Parks & Wildlife Dept v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 457-458 (Tex.App.-Waco, no pet. h.). In response, McLellan notes that this Court has issued apparently conflicting rulings on this issue in the past six months. Compare Lowrey Realty, 155 S.W.3d at 457-458, with Brazos County v. Tullous, No. 10-04-00020-CV, 2004 WL 1574889, at *1, 2004 Tex.App. LEXIS 6094, at *1-2 (Tex.App.-Waco July 7, 2004, no pet.) (mem.op.). We conclude, however, that these decisions are consistent.

In Lowrey Realty, this Court held that it did not have jurisdiction to entertain a similar appeal by employees of the Texas Parks and Wildlife Department because such employees "are individuals, not governmental units" and thus cannot pursue an interlocutory appeal under section 51.014(a)(8). 155 S.W.3d at 458. In Tullous however, this Court reached the opposite conclusion with regard to the Sheriff of Brazos County. 2004 WL 1574889, at *1, 2004 Tex.App. LEXIS 6094, at *1-2. Because the office of sheriff is one "derived from the Constitution," a sheriff is a "governmental unit" under section 101.001(3)(D) and thus under section 51.014(a)(8). See TEX. CONST. art. V, § 23; TEX. GOV'T CODE ANN. § 101.001(3)(D); Perry v. Del Rio, 53 S.W.3d 818, 820-23 (Tex.App.-Austin), dism'd as moot, 66 S.W.3d 239, 242 (Tex.2001).

Other courts have reached the same conclusion with regard to other elected officials whose offices are "derived from the Constitution." See Potter County Atty.'s Off. v. Stars & Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 464-65 (Tex.App.-Amarillo 2003, no pet.) (county attorney⁴); Cornyn v. 52 Members of Schoppa Family, 70 S.W.3d 895, 898 (Tex.App.-Amarillo 2001, no pet.) (attorney general⁵); Perry, 53 S.W.3d at 820-23 (governor, lieutenant governor, and secretary of state⁶); see also McLane Co. v. Strayhorn, 148 S.W.3d 644 (Tex.App.-Austin 2004, pet. filed) (comptroller⁷); Nueces County v. Ferguson, 97 S.W.3d 205, 210 & n. 2 (Tex.App.-Corpus Christi 2002, no pet.) (sheriff).

Some courts have extended this principle to government employees in general. See e.g. De Mino v. Sheridan, No. 01-03-00794-CV, ___ S.W.3d ___, ___-___, 2004 WL 1794558, at *2-3, 2004 Tex.App. LEXIS 7252, at *8-10 (Tex.App.-Houston [1st Dist.] Aug. 12, 2004, no pet.) (university provost); Potter County Atty.'s Off., 121 S.W.3d at 464-65 (police chief); see also Smith v. Lutz, 149 S.W.3d 752 (Tex.App.-Austin 2004, no pet.) (university employees). However, because none of these positions is created by the constitution or by statute, we disagree with the conclusion reached by these courts. See Perry, 53 S.W.3d at 820-23.

McLellan calls our attention to language in De Mino discussing the potential waste of judicial resources which may result from a restrictive reading of section 51.014. "Such a narrow reading would potentially result in a waste of judicial resources if a reviewing court later determined that the trial court's ruling on the plea was improper." De Mino, ___ S.W.3d at ___ n.14, 2004 WL 1794558, at *2 n.14, 2004 Tex. App. LEXIS 7252, at *9 n. 14. However, a "narrow reading" is precisely what we believe the law requires when our Supreme Court states that the statute must be "strictly construed." Bally Total Fitness, 53 S.W.3d at 355.

The implication of De Mino that such a narrow reading thwarts the legislative purpose of providing prompt review of interlocutory rulings on the immunity claims of government employees is simply incorrect. Section 51.014(a)(5) provides government officers and employees another avenue for an interlocutory appeal.⁸ See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(5) (Vernon Supp.2004-2005). Thus, a government employee need not wait until after the conclusion of the parties' litigation to seek appellate review when a trial court denies the government employee's claim of immunity, if the employee raises that claim by motion for summary judgment. See e.g. Doyal v. Johnson County, 79 S.W.3d 139, 139 & n. 1 (Tex.App.-Waco 2002, no pet.) (interlocutory appeal from grant of county's plea to the jurisdiction and county employees' summary judgment motions both premised on immunity).

McLellan is not a "governmental unit." Lowrey Realty, 155 S.W.3d at 458; Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 779-80 (Tex.App.-Fort Worth 2001, pet. dism'd w.o.j.); Univ. of Houston v. Elthon, 9 S.W.3d 351, 354 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.); Johnson v. Resendez, 993 S.W.2d 723, 728 (Tex.App.-Dallas 1999), pet. dism'd, 52 S.W.3d 689 (Tex.2001). Therefore, we dismiss that portion of this appeal brought by McLellan for want of jurisdiction.

A Plaintiff Suing A Governmental Unit Must Allege Sufficient Facts To Establish A Waiver Of Immunity

"When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent." County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). When a plaintiff presents summary judgment evidence to establish jurisdiction, we must also examine that evidence. Tex. Dept. of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The focus of our inquiry is whether the plaintiff has alleged sufficient facts to establish a waiver of immunity. See County of Cameron, 80 S.W.3d at 555; Cozby v. City of Waco, 110 S.W.3d 32, 36 (Tex.App.-Waco 2002, no pet.).

Because The Supreme Court Has Not Yet Recognized A Waiver Of Immunity By Acceptance Of Contract Benefits, We Will Not Do So Either

In Federal Sign v. Texas Southern University, the Supreme Court hinted that "[t]here may be other circumstances where the State may waive its immunity by conduct other than simply executing a contract." 951 S.W.2d 401, 408 n. 1 (Tex. 1997). Nevertheless, on every occasion since, when the Court has been asked to recognize a "waiver-by-conduct" exception, it has declined. See e.g. Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.2003); Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 251-52 (Tex.2002); Tex. Nat. Resource Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 857 (Tex.2002) (plurality); Gen. Servs. Commn. v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001).

Because of this, several intermediate appellate courts have declined to recognize such an exception absent further guidance from the Supreme Court. See e.g. Noah v. Univ. of Tex. Med. Branch at Galveston, No. 01-03-00985-CV, ___ S.W.3d ___, ___-___, 2004 WL 1794642, 2004 Tex. App. LEXIS 7239, at *20-21 (Tex.App.-Houston [1st Dist.] Aug. 12, 2004, pet. denied); Smith, 149 S.W.3d at 758; Univ. of Tex. Med. Branch at Galveston v....