Texas Natural Resource Conserv. V. It-Davy

• Citation: 74 S.W.3d 849
• Decision Date: 11 April 2002
• Docket Number: No. 99-1114.,99-1114.
• Parties: TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Petitioner, v. IT-DAVY, Respondent.
• Court: Supreme Court of Texas

74 S.W.3d 849

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Petitioner, v. IT-DAVY, Respondent.

No. 99-1114.

Supreme Court of Texas.

Argued September 5, 2001.

Decided April 11, 2002.

John Cornyn, Attorney General of the State of Texas, Howard G. Baldwin, First Assistant Attorney General, Julie Caruthers Parsley, Patrick J. Feeney, Linda Eads, William Rich Thompson, and Jeffrey S. Boyd, Austin, for Petitioner.

Bob E. Shannon, Kevin M. Sadler, Baker & Botts, Scott K. Field, York, Keller & Field, L.L.P., Austin, for Respondent.

JAMES A. BAKER, Justice.

The issue in this case is whether the sovereign-immunity doctrine bars IT-Davy, a general contractor, from suing the Texas Natural Resource Conservation Commission, a state agency, for claims arising from the TNRCC's alleged breach of contract. IT-Davy alleges that it fully performed under its contract with the TNRCC. Further, IT-Davy alleges that the TNRCC accepted the full performance but did not fully pay for the accepted services. The TNRCC filed a plea to the jurisdiction, arguing that sovereign immunity bars IT-Davy's claims. The trial court denied the jurisdictional plea. The court of appeals affirmed the trial court's order because it determined that IT-Davy's allegations were "sufficient to show that the [TNRCC] has engaged in conduct, beyond the mere execution of a contract, that waives its immunity from suit." 998 S.W.2d 898, 902. We disagree.

We conclude that the sovereign-immunity doctrine bars IT-Davy's suit. We also conclude that neither the TNRCC's conduct nor the express terms of the contract waived such immunity. Moreover, neither the Water Code nor the Declaratory Judgment Act waive the TNRCC's sovereign immunity from suit under the facts here. Accordingly, we reverse the court of appeals' judgment and dismiss IT-Davy's claims for want of jurisdiction.

I. BACKGROUND

In 1990, the TNRCC's predecessor, the Texas Water Commission, accepted IT-Davy's bid to clean up the Sikes Disposal Pits, a hazardous waste site in Houston. The contract provides for "equitable adjustments" if "conditions materially differ and ... cause an increase or decrease in [IT-Davy's] cost or the time required to perform any part of the work...." Additionally, the contract's "remedies provision" states that all claims or disputes related to the agreement "will be decided by arbitration if the parties mutually agree to arbitration or otherwise in a court of competent jurisdiction in the City of Austin, Travis County, Texas."

The parties do not dispute that IT-Davy performed the clean-up or that the TNRCC paid IT-Davy the full contract price. However, IT-Davy claims it incurred additional expenses and lost profits because materially different site conditions increased its clean-up costs. Accordingly, IT-Davy requested equitable adjustments. After meetings and informal mediation, the TNRCC agreed to pay IT-Davy an additional $700,000 over the contract price. But IT-Davy, believing the TNRCC owes an additional $6,723,655 in extra costs and lost profits, sent a detailed letter to the TNRCC demanding more money. The TNRCC's executive director rejected IT-Davy's demand for additional equitable adjustments. The rejection letter states, in part:

We believe we have paid all amounts due not only under the original contract but also under the numerous contract amendments that we agreed to during the course of the cleanup.

If you feel the need to pursue additional remedies, we intend to participate in those with the same good faith we have demonstrated over the past several years. But we must decline your most recent demand for payment.

IT-Davy next sought to arbitrate the dispute under the contract's "remedies provision." But the TNRCC denied IT-Davy's request. Then, without obtaining legislative consent, IT-Davy sued the TNRCC in a Travis County district court. IT-Davy sought a declaration about its rights and the TNRCC's legal obligations under the contract. Also, IT-Davy sought damages for breach of contract, negligent misrepresentation, quantum meruit, and promissory estoppel.

The TNRCC filed a plea to the jurisdiction based on sovereign immunity. After a hearing, the trial court denied the plea. The TNRCC filed an interlocutory appeal. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8). The court of appeals determined that TNRCC waived immunity from suit by engaging in conduct "beyond the mere execution of a contract." 998 S.W.2d at 902. Specifically, the court of appeals concluded that IT-Davy's allegations—that IT-Davy fully performed under the contract, did additional work at the TNRCC's express request, and did not receive full payment from the TNRCC for this additional work—were sufficient to waive the TNRCC's immunity from suit. 998 S.W.2d at 902.

The TNRCC petitioned this Court to review the court of appeals' decision. While the TNRCC's petition was pending, we decided three related sovereign-immunity cases: General Services Commission v. Little-Tex Insulation Co., consolidated with Texas A & M University v. Dalmac Construction Co., 39 S.W.3d 591 (Tex. 2001); and Texas Department of Transportation v. Aer-Aerotron, Inc., 39 S.W.3d 220 (Tex.2001). We then granted the TNRCC's petition to determine whether sovereign immunity bars IT-Davy's suit.

II. JURISDICTION

The Texas Government Code generally makes jurisdiction over interlocutory appeals final in the courts of appeals. See Tex. Gov't Code § 22.225(b); Coastal Corp. v. Garza, 979 S.W.2d 318, 319 (Tex. 1998). However, this Court has jurisdiction over an interlocutory appeal when there is a dissent in the court of appeals, or the court of appeals "holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case." Tex. Gov't Code § 22.001(a)(2); see also Tex. Gov't Code § 22.225(c); Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 867 (Tex.2001). Our conflicts jurisdiction exists only if "the rulings in the two cases are `so far upon the same facts that the decision of one case is necessarily conclusive of the decision in the other.'" Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 551 (Tex.2000) (citations omitted). The test is whether one case would operate to overrule the other if the same court rendered both. Coastal Corp., 979 S.W.2d at 319-20.

Here, there is no dissent in the court of appeals. Accordingly, we have jurisdiction only if we determine that the court of appeals held differently from a prior decision of another court of appeals or this Court. See Tex. Gov't Code §§ 22.001(a)(2), 22.225(c); White, 46 S.W.3d at 867.

We conclude that the court of appeals' decision conflicts with Ho v. University of Texas at Arlington, 984 S.W.2d 672 (Tex. App.-Amarillo 1998, pet. denied). In Ho, the University dismissed Ho from its doctoral program without granting her a degree. Ho brought various contract, tort, and constitutional claims against the University. In a summary-judgment motion, the University asserted that the sovereign-immunity doctrine barred Ho's claims. Relying on Federal Sign and a court-of-appeals decision, Ho asserted that she did not have to plead and prove legislative consent to suit because the University's conduct waived its immunity from suit. Ho, 984 S.W.2d at 682. The trial court granted the University's motion. On appeal, Ho relied on Federal Sign to argue that the University's conduct waived its immunity from suit and, consequently, she could sue the University without obtaining legislative consent. Ho, 984 S.W.2d at 682 (citing Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 n. 1 (Tex.1997)). The court of appeals rejected her argument:

We disagree with Ho's premise. By stating that it is "the Legislature's sole province to waive or abrogate sovereign immunity," the majority opinion in Federal Sign clearly reaffirmed a long line of cases standing for that general principle....

[T]he only exception we have found in which the State, by its own actions waives immunity, is that which applies when the State initiates a suit.... Therefore, inasmuch as Ho was unable to plead and prove she had the State's consent to bring this suit, she has not complied with that procedural requirement and the trial court correctly granted summary judgment dismissing Ho's contract claims.

Ho, 984 S.W.2d at 682-83 (citations omitted) (emphasis added). Because Ho rejects any waiver-by-conduct exception to sovereign immunity when a private party sues the State, the court of appeals' decision here would operate to overrule Ho if the same court of appeals had rendered the decision. See Coastal Corp., 979 S.W.2d at 319-20. Therefore, we have jurisdiction to consider this interlocutory appeal. See Tex. Gov't Code §§ 22.001(a)(2), 22.225(c); White, 46 S.W.3d at 867.

III. APPLICABLE LAW

A. The Sovereign-Immunity Doctrine and the Standard of Review

Sovereign immunity protects the State from lawsuits for money damages. Little-Tex, 39 S.W.3d at 594. Sovereign immunity encompasses two principles: immunity from suit and immunity from liability. Little-Tex, 39 S.W.3d at 594. Immunity from suit bars a suit against the State unless the Legislature expressly consents to the suit. Little-Tex, 39 S.W.3d at 594. If the Legislature has not expressly waived immunity from suit, the State retains such immunity even if its liability is not disputed. Federal Sign, 951 S.W.2d at 405. Immunity from liability protects the State from money judgments even if the Legislature has expressly given consent to sue. Little-Tex, 39 S.W.3d at 594.

This Court has long recognized that "it is the Legislature's sole province to waive or abrogate sovereign immunity." Federal Sign, 951 S.W.2d at 409; see also Duhart v. State, 610 S.W.2d 740, 741 (Tex. 1980); Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex.1970); Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308...