Wichita Falls State Hosp. v. Taylor

Decision Date06 March 2003
Docket NumberNo. 01-0491.,01-0491.
Citation106 S.W.3d 692
PartiesWICHITA FALLS STATE HOSPITAL, Petitioner, v. Deborah D. TAYLOR, Individually and as Heir of the Estate of Terry Lynn Taylor, Respondent.
CourtTexas Supreme Court

Lisa Royce Eskow, Atty. General's Office, Austin, John Cornyn, United States Senate, Washington, DC, Howard G. Baldwin, First Asst. Atty. Gen. of Tex., Jeffrey S. Boyd, Office of Atty. Gen., Julie Caruthers Parsley, Office of Sol. Gen., S. Ronald Keister, Office of Atty. Gen., William Rich Thompson, II, Office of Atty. Gen., Austin, for Petitioner.

Michael D. Moore, Weatherford, James B. Barlow and Eugene J. Dozier, Barlow & Garsek, Fort Worth, for Respondent.

Justice JEFFERSON delivered the opinion of the Court.

This is an interlocutory appeal in a wrongful-death lawsuit against Wichita Falls State Hospital for violations of the "patient's bill of rights," which is codified at chapter 321 of the Texas Health and Safety Code. We must determine whether the Legislature intended to waive the State's sovereign immunity by enacting section 321.003 of the Code. We conclude that it did not. Accordingly, we reverse the court of appeals' judgment and dismiss Taylor's claims for want of jurisdiction.

I Background

Terry Lynn Taylor was involuntarily committed to Wichita Falls State Hospital for severe mental illness. Taylor was discharged four days later, after being treated by Dr. Peter Fadow, a psychiatrist at the Hospital. Taylor returned home and committed suicide that same day. Taylor's wife, Deborah Taylor, sued the Hospital and Dr. Fadow under Texas Health and Safety Code section 321.003, asserting claims for wrongful death and survival. TEX. CIV. PRAC. & REM.CODE §§ 71.002, .021. She alleged that Taylor's death was proximately caused by the negligence of the doctor and Hospital in failing to properly diagnose and treat his mental illness, and that the defendants' acts and omissions violated the patient's bill of rights. See 25 TEX. ADMIN. CODE §§ 133.42, 404.154-.159.

The Hospital moved to dismiss for want of jurisdiction based on sovereign immunity.1 In her response, Deborah Taylor argued that the Legislature unambiguously waived the Hospital's immunity by enacting Texas Health and Safety Code section 321.003, which provides that a person who has been harmed by a violation of the patient's bill of rights "may sue" for damages. The trial court denied the Hospital's jurisdictional plea and the Hospital appealed. A divided court of appeals affirmed, holding that the Legislature clearly and unambiguously waived immunity from suit against state mental health facilities for violations of the patient's bill of rights. 48 S.W.3d 782. We granted the Hospital's petition for review to consider this issue of first impression.2

II Discussion
A. Sovereign Immunity3

In 1847, this Court held that "no State can be sued in her own courts without her consent, and then only in the manner indicated by that consent." Hosner v. De Young, 1 Tex. 764, 769 (1847). The Court did not cite the origin of that declaration, but it appears to be rooted in an early understanding of sovereignty:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.

THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (dismissing fears that adopting the new Constitution would abrogate states' sovereign immunity). Although sometimes associated in the United States with the feudal fiction that "the King can do no wrong," sovereign immunity "is an established principle of jurisprudence in all civilized nations." Beers v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 15 L.Ed. 991 (1857).

Most sovereigns have long since abandoned the fiction that governments and their officials can "do no wrong." To varying degrees, states and the federal government have voluntarily relinquished the privilege of absolute immunity by waiving immunity in certain contexts. See, e.g., 28 U.S.C. § 1346(b); TEX. CIV. PRAC. & REM. CODE § 101.021. Invariably, however, they have retained a significant measure of immunity to protect the public treasury. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 417 (Tex.1997) (Enoch, J., dissenting); Elizabeth K. Hocking, Federal Facility Violations of the Resource Conservation and Recovery Act and the Questionable Role of Sovereign Immunity, 5 ADMIN. L.J. 203, 211 (1991); Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L.REV. 1, 1 (1963); Glen A. Majure et al., The Governmental Immunity Doctrine in Texas — An Analysis and Some Proposed Changes, 23 Sw. L.J. 341, 341 (1969).

B. Waiver of Immunity

Because consent is pivotal to a waiver of sovereign immunity, it is important to consider the manner in which a sovereign conveys its consent to be sued. Under our form of government, the state derives its authority from "the people." E.g., TEX. CONST. art. I, § 2 (stating that "[a]ll political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit"); see also Alden v. Maine, 527 U.S. 706, 759, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (noting that the federal Constitution began "with the principle that sovereignty rests with the people"). In Texas, the people's will is expressed in the Constitution and laws of the State. See Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147, 153-54 (1943); Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 465-66 (Tex. 1997). Consequently, to waive immunity, consent to suit must ordinarily be found in a constitutional provision or legislative enactment.

Courts in other jurisdictions have occasionally abrogated sovereign immunity by judicial decree.4 We have held, however, that the Legislature is better suited to balance the conflicting policy issues associated with waiving immunity. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.2002); Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex.1993); Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). But see Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 593 (Tex.2001), (Hecht, J., concurring) (noting that judicial abolition of immunity may be necessary to prompt Legislature to enact reasoned system for determining government's responsibility for its torts). Although we have not absolutely foreclosed the possibility that the judiciary may abrogate immunity by modifying the common law, we have no occasion to consider that possibility today.

When considering immunity in Texas, we address not only whether the State has consented to suit, but also whether the State has accepted liability. Fed. Sign, 951 S.W.2d at 405. Immunity from suit prohibits suits against the State unless the State expressly consents to the suit. Id. Thus, even if the State acknowledges liability on a claim, immunity from suit bars a remedy until the Legislature consents to suit. Id. Immunity from liability protects the State from judgments even after the State has consented to suit. Id. Accordingly, even if the Legislature has authorized a claimant to sue, the State's immunity is retained until it acknowledges liability. Id. Unlike immunity from suit, immunity from liability does not affect a court's jurisdiction to hear a case and cannot be raised in a plea to the jurisdiction. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999).

It is settled in Texas that for the Legislature to waive the State's sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature's waiver of immunity. Fed. Sign, 951 S.W.2d at 405; Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994); Duhart, 610 S.W.2d at 742. In 2001, the Legislature ratified this approach by adding section 311.034 to the Code Construction Act. That section provides: "In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language." TEX. GOV'T CODE § 311.034.

Some statutes leave no doubt about the Legislature's intent to waive immunity. When the Legislature pronounces, for example, that "[s]overeign immunity to ... liability is waived and abolished to the extent of liability created by this chapter," we have had little difficulty recognizing a waiver of immunity from liability.5 But this case presents no such explicit language waiving immunity from liability. And because the State cannot properly assert immunity from liability in a plea to the jurisdiction, we have no occasion to decide the extent to which immunity from liability is implicated here. Jones, 8 S.W.3d at 638.

Similarly, we have little difficulty recognizing the Legislature's intent to waive immunity from suit when a statute provides that a state entity may be sued or that "sovereign immunity to suit is waived."6 This case, however, does not contain the sort of language the Legislature generally uses to confirm its intent to waive immunity from suit. Accordingly, we examine factors we have employed to determine whether a statute that is less explicit may nevertheless waive the State's immunity from suit.

We have on rare occasions found waiver of sovereign immunity absent "magic words," such as the State's "sovereign immunity to suit and liability is waived." Although it is more difficult to discern legislative consent under those circumstances, we have employed several aids to help guide our analysis in determining whether the Legislature has clearly and unambiguously waived sovereign...

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