                          June 20, 1989




Honorable Dan Morales                      Opinion No.    JM-1061
Chairman
Criminal Jurisprudence Committee           Re: Whether the state
Texas House of Representatives             may restrict its waiver
P. 0. Box 2910                             of immunity  (RQ-1662)
Austin, Texas  78768-2910

Dear Representative   Morales:

     YOU ask the following        questions      about    waiver     of
governmental immunity:

        (1) Does    the state    possess  the    legal
        authority  to   place any    limitations    or
        restrictions upon its waivers of immunity?

        (2) What is the appropriate       legislative
        vehicle for the legislature to utilize when
        the state wishes to waive its immunity?

The following  general discussion  of governmental             immunity
will provide answers to both of your questions.

     There are two types of governmental immunity:  immunity
from suit and immunity from liability. Adams v. Harris
Countv. 530 S.W.2d 606. 608 (Tex. Civ. App. - Houston   [14th
Dist.] 1975), appeal dismissed, 429 U.S. 803 (1976).      The
state may waive either type of immunity.       A waiver    of
immunity from suit does not, however,    imply a waiver    of
immunity from liability.   State v. Isbell   94 S.W.2d   423,
425 (Tex. 1936). The Texas Tort Claims A&   is an example of
a statute that offers a limited waiver       from suit and
immunity from liability under certain circumstances.      See
Civ. Prac. & Rem. Code §§ 101.021, 101.025.

     The legislature has traditionally         employed     concurrent
resolutions  to waive immunity from            suit in      individual




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cases.1   Co&ran Core. v. Bullock, 567 S.W.2d 616 (Tex. Civ.
App. - Austin     1978, no Writ).   The Civil Practices     and
Remedies Code now contains provisions governing    resolutions
waiving state immunity from suit. Acts 1987, 70th Leg., ch.
524, at 2133    (codified as one of two chapter   107s of the
Civil Practices and Remedies Code).   Section 107.002 of the
code sets out the effects of a resolution       that grants   a
person permission     to sue the state.     Section    107.003
provides:

           (a) A resolution may grant permission to
        sue the state only in accordance with this
        chapter.

           (b) A resolution may not alter the effect
        of the permission   as described  by Section
        107.002, except that a resolution may further
        limit the relief to which the claimant may be
        entitled.

Section 107.004 provides:

           A resolution   may specifically  provide
        additional conditions  to which a grant of
        permission to sue is subject.

See Trinitv River Auth. v. Williams, 689 S.W.2d 883, 885
(Tex. 1985)(holding   that the state's waiver of sovereign
immunity   can   be   made subject    to   restrictions  and
conditions);   see cenerallv Buford v. State 322 S.W.2d 366,
370 (Tex. Civ. App. - Austin), cert. den&d, 361 U.S.     837
(1959)(holding   that   statutes   cannot   be   amended  by
resolution).

     Not only has the legislature used resolutions to waive
immunity from suit in individual cases, but it has also used
them to waive immunity from liability in individual   cases.
See Comment, Governmental Immunitv  from Suit and Liability



   1. A resolution is used when the legislature wishes    to
express an opinion as to a given matter or thing which is to
have a temporary effect.  State v. Delesdenier, 7 Tex. 76,
94-96 (1851); Conlev v. Texas Div. of United Daushters     of
the Confederacy, 164 S.W. 24, 26 (Tex. Civ. App. - Austin
1913, writ ref'd);     see oenerally   Comment,  Lesislative
Resolutions:  Their Function and Effect, 31 Tex. L. Rev. 417
(1953).




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in Texas, 27 Tex. L. Rev. 337 (1949); see also Civ. Prac. &
Rem. Code § 107.002(b)(providing that a resolution   granting
permission to sue does not waive to any extent immunity from
liability).   There are, however, serious questions about the
constitutionality of waiving    immunity   from liability  in
individual cases. The courts have held that a resolution
waiving immunity from liability on behalf of an individual
violates both article III, section       56, and article I,
section 3, of the Texas Constitution.

     Article III, section 56, prohibits the enactment       of
special or local laws on specified subjects.        Waiver of
governmental immunity is not among the subjects        listed.
However,  article   III, section     56, also contains     the
following proviso:   "And in all other cases where a general
law can be made applicable, no local or special law shall be
enacted."   In State Hicrhwav DeD't v. Gorham  162 S.W.2d 934
(Tex. 1942), the Texas Supreme Court heid that an act
granting an individual the privilege      of bringing  a suit
against the highway department violated article III, section
56. The court also held that the act at issue in Gorham
violated article I, section 3, the equal protection     clause
of the Texas Constitution.       The court held the act in
question invalid for several other reasons as well and did
not elaborate on its statements about article III, section
56, or article I, section 3.

     Three years later, the supreme court cited Gorham    for
the proposition that a waiver of liability in regard to an
individual would violate article I, section 3, of the Texas
Constitution.   Martin v. SheDDard, 201 S.W.2d 810, 812 (Tex.
1947). The court did not mention article III, section 56.
See oenerally G. D. Braden, 1 The Constitution of the State
of Texas:     An Annotated   and Comparative   Analysis   279
(1977)(guestioning the correctness of Gorham as an article
III, section 56, case). Although Martin v. SheDward was a
collection suit based on a judgment in a suit involving just
such a waiver, the court held that the judgment was not
subject to collateral attack because the court granting the
judgment had jurisdiction over the parties.   In so holding,
the court wrote:

           And, further, it is provided in Section  5
        of the act that, if any paragraph, clause, or
        provision  thereof should be held to       be
        invalid or unconstitutional, the validity  of
        the other provisions of the act shall not be
        affected thereby. Striking from the act the
        third section [waiving the state's   immunity
        from liability], there remains    an express




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        permission granted to relators to bring suit
        in the district court of Liberty County    for
        damages on account of the injuries   sustained
        by A. J. Martin which resulted in his death
        and the further provision that process might
        be served upon the Governor      and Attorney
        General.  It cannot be ouestioned that the
        leaislature had the power to orant relators
        pm
        the manner of service. By virtue of that act
        and by the service of process        and   the
        appearance ;iethe State through its Attorney
        General,           court   clearly    acquired
        jurisdiction    of   the   parties   to    the
        litigation.   (Emphasis added.)

Martin. subra, at 812. In other words, the court took the
position that it was within the legislature's power to grant
an individual permission to sue but that it was not within
the legislature's power to waive governmental immunity   from
liability in regard to an individual.   One could argue that
if a waiver of immunity from liability in regard to a single
individual is either an unconstitutional special law or a
violation of the equal protection     clause, a waiver     of
immunity from suit in regard to a single individual would
also be either an unconstitutional       special law or     a
violation of the equal protection clause.      That was not,
however, the view of the Supreme Court in w.        See State
v. Isbell, suwra, at 425; Adams v. Harris County, suora, at
608 (both expressly holding that consent to sue may be given
by concurrent resolution, but that waiver of immunity    from
tort liability can be given only by general law); see also
Tho
:, as v.                                 333 F.Supp. 961  (D.
V. I. 1971), aff'd, 515 F.2d 507 (1975) (holding that waiver
of sovereign immunity on behalf of individual violates equal
protection clause of federal Constitution):   Krause v. Ohio,
285 N.E.2d   736  (Ohio), vdismissed,         409 U.S.   1052
 (1972) (holding that withholding remedy   from some persons
injured by governmental torts but not from others does not
violate equal protection clause of federal Constitution);
Commercial Standard   Fire & Marine Co. v. Commissioner    of
Ins., 429 S.W.2d 930, 935 (Tex. Civ. App. - Austin 1968, no
writ); State v. McDonald, 220 S.W.2d 732 (Tex. Civ. App.    -
Texarkana 1949, writ ref'd). The courts have held that a
resolution attempting   to waive governmental immunity   from
liabilitv on behalf of an individual is unconstitutional but
that a resolution waiving immunity from suit on behalf of an
individual is not.




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     A resolution  waiving  immunity from tort liability2
after the tort has occurred has also been held to be
unconstitutional.  In Matkins v. State, 123 S.W.Zd 953 (Tex.
Civ. App. - Beaumont 1939, writ dism'd judgmt car.), the
court held that a statute that is passed         after   the
commission of a tort and that attempts to recognize       or
assume liability for the tort by the state violates  article
III, section 44, of the Texas Constitution, which provides
that the state shall not pay a claim not provided for by
pre-existing law.

     In summary, the answer to your first question is clear:
The legislature  may place restrictions    on a waiver of
immunity. Trinitv River Auth. v. Williams, suora, at 085.
The answer to your second question is more complex.      The
legislature may waive immunity from suit either by a statute
of general application or by concurrent    resolution.   The
legislature may waive immunity from liability only by a
statute of general application.   The constitution does not
permit the legislature to  waive immunity from liability by
resolution applicable to an individual, nor does it permit
the legislature to waive  immunity from liability after the
occurrence of the events that would give rise to liability.

                         SUMMARY




   2. The state    is liable on contracts      as if it were a
private citizen.   Therefore, the only impediment to a suit
against the state on a contract is the state's immunity from
suit. Texas Em wl ovment Comm'n v. Camarena; 710 S.W.2d 665,
671 (Tex. App. - Austin    1986), rev'd on other orounds,       754
S.W.2d 149 (Tex. 1988).     Also,  it  has been   suggested    that
the state is not immune from liability when it acts in a
proprietary, rather than a governmental, capacity.       State v.
Morcan, 170 S.W.2d 652,    653  (Tex. 1943).   It  has also    been
suggested,   however,   that the    state--in   contrast    to    a
municipality-- acts only in a governmental capacity and, in
the absence of a valid waiver, enjoys             immunity     from
liability for all torts.    State  v. Brannan,  111  S.W.2d    347,
348-49 (Tex. Civ. App. - Waco 1937, writ ref'd);        see    also
Wvse v. Dewartment    of Public Safetv, 733 S.W.2d 224, 228
(Tex. App. - Waco 1986, writ ref'd n.r.e.); Jones v. Texas
Gulf Sulwhur Co., 397 S.W.2d 304, 308 (Tex. Civ. App. -
Houston 1965, writ     ref'd n.r.e.); Comment,       Governmental
Immunitv from Suit and Liabilitv in Texas, suwra, at 344.




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            The legislature may place    restrictions
       on a waiver of governmental immunity.       The
       legislature  may   waive immunity    from suit
       either by a statute of general application or
       by concurrent    resolution.   The state may
       waive immunity from liability by a statute of
       general application.    The constitution   does
       not permit the legislature to waive    immunity
       from liability   after the occurrence of the
       events that give rise to liability.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCRKARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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