
No. 04-02-00552-CV
Ray M. CLARK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 224th Judicial District Court, Bexar County, Texas 
Trial Court No. 2002-CI-05119
Honorable Karen Pozza, Judge Presiding
Opinion by:	Sandee Bryan Marion, Justice
 
Sitting:	Sarah B. Duncan, Justice
		Karen Angelini, Justice
		Sandee Bryan Marion, Justice
Delivered and Filed:	January 8, 2003
AFFIRMED

	This is an appeal from the trial court's grant of the State's plea to the jurisdiction.  In 1992,
appellant, Ray Clark, brought a breach of contract suit against Chase International in a Texas state
court.  In 1993, the lawsuit was removed to a Texas federal district court, which, in turn, transferred
the case to a federal district court in Connecticut.  Following an unfavorable result in Connecticut,
in 2002, Clark sued the State of Texas, alleging the State knew, or should have known, that it would
be hauled into court if Connecticut "failed to provide a fair trial, free of undue prejudice and
inconvenience."  The State filed a plea to the jurisdiction, which was granted.  This appeal by Clark
ensued.  We affirm.
STANDARD OF REVIEW
	Subject matter jurisdiction is essential to the trial court's authority to decide a case.  See 
Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  To prevail,
the party asserting the plea to the jurisdiction must show that even if all the allegations in the
plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent from the
face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the
trial court.  Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n, 16 S.W.3d
61, 65 (Tex. App.--Austin 2000, no pet.).  Because subject matter jurisdiction presents a question
of law, we review the trial court's decision under a de novo standard of review.  Id.  A court
deciding a plea to the jurisdiction is not required to look solely to the pleadings, but may consider
evidence relevant to the jurisdictional issue and must do so when necessary to resolve the
jurisdictional issues raised.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000).
We construe the plaintiff's pleadings in the plaintiff's favor and look to the plaintiff's intent.  Texas
Ass'n of Business, 852 S.W.2d at 446.  We do not address the merits of the case; instead, the
defendant must establish why the merits of the plaintiff's claims should not be reached.  Bland
Indep. Sch. Dist., 34 S.W.3d at 554.
DISCUSSION
	In his petition, Clark asserted that the Texas federal district court was required to ascertain
that a suitable alternative forum existed for the lawsuit before transferring the case to another forum.
Clark interprets "a suitable alternative forum" as one that is capable of and committed to conducting
a fair and unbiased trial, free from undue prejudice and inconvenience.  Although the State was not
a party to Clark's lawsuit against Chase International, Clark attempts to hold the State responsible
for the unfavorable treatment he allegedly received from the Connecticut court, which he describes
as a "kangaroo court."  The premise of Clark's suit against the State is that the State violated its
agreement to "ascertain that there is a suitable alternative forum." 
	Clark relies on the United States Supreme Court's decision in Lapides v. Board of Regents
of the Univ. Sys. of Georgia, 535 U.S. 613, 122 S. Ct. 1640 (2002), in which the Supreme Court held
that a state waives its Eleventh Amendment immunity when it removes a suit to federal court in
which it is named as a defendant.  In Lapides, the plaintiff brought suit in state court against the
State of Georgia, alleging violations of state and federal law.  Georgia removed the case to federal
court, and then moved to dismiss the case, urging that it was immune from suit in federal court
under the Eleventh Amendment. The Supreme Court noted that by removing the case Georgia
"voluntarily invoked the jurisdiction of the federal court," 122 S. Ct. at 1645, and held that "removal
is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the State's
otherwise valid objection to litigation of a matter . . . in a federal forum."  Id. at 1646.  
	Clark's reliance on Lapides is misplaced because the State was not a party to the Chase
International lawsuit and was not responsible for the removal of the lawsuit from the Texas state
court to any federal court.  In fact, a Texas state court had no hand in transferring the lawsuit to
Connecticut; that action was taken by a federal court sitting in the Western District of Texas.
Nevertheless, even taking as true Clark's allegation that the State of Texas was responsible for the
transfer, there is no waiver of immunity here. 
	In his response to the State's plea to the jurisdiction, Clark characterized his claim against
the State as a breach of contract claim, alleging the State breached its contract to "ascertain that
there is a suitable alternative forum."  Assuming for the sake of argument that the State entered into
a contract with Clark, Clark was required to establish legislative consent to sue by bringing suit
under a special statute or obtaining a legislative resolution.  General Servs. Comm'n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 596 (Tex. 2001); Tex. Civ. Prac. & Rem. Code Ann. § 107.001 et
seq. (Vernon 1997) ("Permission to Sue the State").  There is no special statute allowing the State
to be sued for "wrongful transfer" of a lawsuit from one forum to another or for breach of a "quasi-contract" to properly transfer a lawsuit to another forum.  Nor has Clark obtained the Legislature's
consent to sue.  Accordingly, the State retains its immunity from suit, and the trial court properly
granted the State's plea to the jurisdiction.
	We overrule Clark's issues on appeal, and affirm the trial court's judgment.
							Sandee Bryan Marion, Justice
PUBLISH
