      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00007-CV



                                     State of Texas, Appellant

                                                   v.

                   Barbara Oakley, as Guardian of the Estate and Person of
                        Richard Danziger, A Disabled Adult, Appellee




                 FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
                NO. 75107C, HONORABLE GUY HERMAN, JUDGE PRESIDING



                               DISSENTING OPINION


               Because I disagree with the majority’s determination that Ochoa’s wrongful

imprisonment claim can be assigned to Danziger, I respectfully dissent.

               In this case, we must start with the premise that Texas cannot “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), quoted in Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694

(Tex. 2003). The State may relinquish its sovereign immunity, if at all, in “varying degrees,” and

the legislature “is better suited to balance the conflicting policy issues associated with waiving

immunity.” Wichita Falls, 106 S.W.3d at 695. I believe that the question of whether assignment

is a necessary extension of the right created by this statute involves policy considerations better left

for the legislature. Further, because the legislature may waive immunity in “varying degrees,” the
legislature’s waiver of immunity as to “the person entitled” to relief after wrongful imprisonment

does not necessarily mean that the legislature also intended to waive immunity as to someone

purportedly holding an assignment of that right.1

                The State is immune both from suit and from liability, and even if the State

“acknowledges liability on a claim,” it does not necessarily follow that the State waived immunity

from suit. Id. at 696. In evaluating whether immunity has been waived, we consider several factors.

Id. at 697. First, waiver must be “beyond doubt.” Id. Second, we resolve ambiguities in favor of

immunity, and if the statute leaves room for doubt, we “are less likely to find a waiver.” Id. Third,

we must consider whether the legislature provided by statute for an “objective limitation on the

State’s potential liability.” Id. at 698.

                Even if immunity from suit is waived, it is important to remember that the rule

requiring a clear and unambiguous waiver applies both to the existence and to the extent of the

waiver.2 City of LaPorte v. Barfield, 898 S.W.2d 288, 297 (Tex. 1995); see Wichita Falls, 106

S.W.3d at 696. However, “[t]he clear and unambiguous requirement is not an end in itself, but

merely a method to guarantee that courts adhere to legislative intent. Therefore, the doctrine should

not be applied mechanically to defeat the true purpose of the law.” Kerrville State Hosp. v.



        1
         The majority cites several cases for the proposition that in the face of statutory silence, we
should look to common-law principles governing assignment. See PPG Indus., Inc. v. JMB/Houston
Ctrs, Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004); Mobil Oil Corp. v. Ellender, 968 S.W.2d
917, 927 (Tex. 1998); Jackson v. Thweatt, 883 S.W.2d 171, 175 (Tex. 1994). None of those cases,
however, deals with sovereign immunity.
        2
         The legislature ratified this concept when it enacted section 311.034 of the Code
Construction Act, providing that there is no waiver unless “effected by clear and unambiguous
language.” Tex. Gov’t Code Ann. § 311.034 (West Supp. 2005).

                                                  2
Fernandez, 28 S.W.3d 1, 3 (Tex. 2000). In other words, we cannot apply the “clear and

unambiguous rule” so rigidly as to defeat the “almost certain intent” of the legislature. Id. (quoting

Barfield, 898 S.W.2d at 292). We may not interpret statutory language so as to render it pointless

if it is reasonably susceptible of another construction, and if there is no reasonable doubt of a

statute’s purpose, “we will not require perfect clarity, even in determining whether governmental

immunity has been waived.” Barfield, 898 S.W.2d at 292.

               In Wichita Falls, the statutes in question seemingly added up to the State being

amenable to suit.3 See 106 S.W.3d at 698-99. However, the statute did not “contain the sort of

explicit language the Legislature generally uses to confirm its intent to waive sovereign immunity,”

and therefore the supreme court examined the statute to decide whether “the incorporated definition

is the functional equivalent of an explicit” legislative waiver. Id. at 699. The court observed that

the statute creates a “meaningful cause of action against private” facilities that “remains viable even

if suit against the government is barred” and that the statute’s purpose is accomplished without

allowing suits against the State. Id. at 700. Therefore, the court determined that the statute “does

not waive the State’s immunity beyond doubt” and that “[t]he statute’s ambiguity precludes our

finding an unmistakable Legislative intent to waive sovereign immunity.” Id. at 700-01.




       3
          The plaintiff sued a state hospital, part of the Texas Department of Mental Health and
Mental Retardation (“MHMR”), for violations of the patient’s bill of rights. Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003); see Tex. Health & Safety Code Ann. 321.002,
.003 (West 2001) (persons harmed by violation of patient’s bill of rights may sue for damages).
Although the bill of rights does not expressly define “mental health facilities,” it uses “the meaning
assigned by Section 571.003.” Tex. Health & Safety Code Ann. § 321.001(4) (West 2001). “Mental
health facility” is defined by section 571.003 to include facilities operated by MHMR. Id.
§ 571.003(12) (West Supp. 2005).

                                                  3
                In this case, section 103.001 of the civil practice and remedies code provides that a

person is entitled to compensation for wrongful imprisonment if “the person has served in whole or

in part a sentence in prison” and has either received a full pardon or been granted relief on the basis

of actual innocence. Tex. Civ. Prac. & Rem. Code. Ann. § 103.001(a) (West 2005). A “person

seeking compensation under” chapter 103 must initiate proceedings to obtain relief no later “than

the third anniversary of the date the person received the pardon or was found not guilty.” Id.

§ 103.003 (West 2005). Subchapter C governs the seeking of compensation through suit against the

State, and its provisions require a claimant to file “a verified petition alleging that the petitioner is

entitled to compensation.” Id. § 103.101(b) (West 2005). A “petitioner must establish by a

preponderance of the evidence that the petitioner is entitled to compensation,” id. § 103.102 (West

2005), and if the fact-finder determines that the petitioner is entitled to relief, the petitioner may

recover expenses “incurred by the petitioner” related to the criminal proceedings, income lost as a

direct result of the wrongful imprisonment, and medical and counseling expenses “incurred by the

petitioner.” Id. § 103.105(a) (West 2005). In determining the proper amount of compensation, the

fact-finder may not deduct any expenses incurred by the State “in connection with the arrest,

prosecution, conviction, and wrongful imprisonment of the petitioner.” Id. § 103.105(b). Payments

terminate if the eligible person is later convicted of a felony or “on the date of the person’s death”;

compensation payments do not flow to the person’s heirs or estate. Id. § 103.154 (West 2005).

                I set out the applicable statutory provisions to highlight the fact that each statute is

couched exclusively in terms of the wrongfully convicted person. There is no mention of

assignment, nor is this statute one that is rendered meaningless without a finding of waiver as to an



                                                   4
assignee. See Wichita Falls, 106 S.W.3d at 698, 700; Fernandez, 28 S.W.3d at 3. I agree with the

majority that the legislature has shown a clear and unmistakable intent to waive immunity for a

person who has wrongfully “served in whole or in part a sentence in prison.” Tex. Civ. Prac. &

Rem. Code Ann. § 103.001(a). However, the legislature has not shown a clear intent to allow that

right of action and corollary waiver of immunity to be transferred to another person.4 Compensation

under chapter 103 may be had only upon application or petition by the convicted person and,

although this chapter contains a clear waiver of immunity from suit when an entitled person files a

verified petition, it only allows for recovery by the injured person. The claimant must aver that he

or she was entitled to compensation, and there is no indication of any intent to allow others to seek

compensation for the imprisoned person’s damages. More important, compensation ceases upon the

claimant’s death and does not survive to pass to his or her heirs. This clearly demonstrates that the

legislature intended claims made under this chapter to be personal in nature and limited to the

wrongfully imprisoned person. To widen the legislature’s waiver of immunity and graft more liberal

common-law principles onto these statutes flies in the face of established sovereign immunity law.

               Furthermore, I believe the majority impermissibly melds the definition of a “personal”

claim with the question of whether available damages are remedial or punitive, two aspects of a

claim that I believe are separate inquiries. I recognize that the compensation allowed under chapter

103 is remedial in nature and that punitive damages are not allowed. However, that does not change

the fact that the injury being addressed could hardly be more personal in nature or that every




       4
         In its discussion of Wichita Falls and the waiver of immunity made the subject of that case,
the majority fails to draw this distinction between waiver as to the wronged person and an assignee.

                                                 5
provision of chapter 103 is expressly limited to the wrongfully imprisoned person him or herself.

Although the general rule does allow for the assignment of most claims, as stated in Bay Ridge

Utility District v. 4M Laundry, “in the absence of an express statutory provision to the contrary, a

statutory cause of action is not assignable if it is personal to the one who holds it and would not

survive his death.” 717 S.W.2d 92, 96 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.)

(citing Dearborn Stove Co. v. Caples, 236 S.W.2d 486, 490 (Tex. 1951)).

               The express language of chapter 103 shows a legislative intention that claims under

chapter 103 be considered personal claims, albeit personal claims with relief limited to remedial

compensation. Because chapter 103 claims are personal in nature and do not survive the claimant’s

death, under Bay Ridge and Dearborn Stove, I would hold that chapter 103 claims are not assignable

and may only be filed by the wrongfully imprisoned person him or herself.

               I believe that the majority’s allowance of the assignment impermissibly broadens the

waiver of immunity beyond the legislature’s intentions. Further, I would hold that Ochoa’s claim

under chapter 103 is a personal claim and, because it cannot survive his death, I would hold that it

may not be assigned to another party. For these reasons, I respectfully dissent.




                                              __________________________________________

                                              David Puryear, Justice

Before Justices B. A. Smith, Patterson and Puryear

Filed: December 16, 2005



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