              IN THE SUPREME COURT OF TEXAS
                                    ══════════
                                      No. 17-0409
                                    ══════════

                          CHARLES J. HUGHES, PETITIONER,

                                           v.


                         TOM GREEN COUNTY, RESPONDENT

           ══════════════════════════════════════════
                       ON PETITION FOR REVIEW FROM THE
                COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
           ══════════════════════════════════════════


       JUSTICE BOYD, joined by JUSTICE LEHRMANN and JUSTICE BROWN, concurring in
the judgment.

      In an earlier probate proceeding, Charles Hughes and Tom Green County both

claimed ownership of the same mineral interests. They ultimately settled those competing

claims. Hughes now alleges the County breached that settlement agreement, and the Court

holds that governmental immunity does not bar Hughes’s claim against the County for that

breach. — S.W.3d —, —. I agree with that result, but not with the Court’s analysis, which

misapprehends both governmental immunity and our holding in Reata Construction Corp.

v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

                                           I.

      The Court holds that the County’s decision to intervene in the probate proceeding

and assert an affirmative claim to the mineral interests “abrogated the County’s
governmental immunity as in Reata.” — S.W.3d at —. But Reata is irrelevant here because

the claim Hughes asserted in the probate proceeding never implicated the County’s

immunity at all. We held in Reata that when a governmental entity voluntarily engages in

litigation and asserts an affirmative claim for money damages, immunity does not apply to

the defendant’s counterclaims against the governmental entity if those counterclaims are

“germane to, connected with, and properly defensive to” the governmental entity’s claims,

to the extent the counterclaims serve only to offset the amount of the governmental entity’s

recovery. 197 S.W.3d at 376–77. In the probate proceeding here, however, Hughes asserted

a competing claim to the mineral interests, not a counterclaim against the County.

       The probate proceeding’s procedural background demonstrates why Reata has

nothing to do with this case. Southern Methodist University initiated the in rem probate

litigation seeking a judicial release of a will’s restriction on SMU’s use of the disputed

mineral interests. At that time, of course, the lawsuit involved only SMU. The County

promptly intervened and sought a declaration that the disputed mineral interests belonged

to its local library. Almost two years later, Hughes intervened and sought a declaration

that those interests belonged to him and the testator’s other heirs. Although three parties

ultimately competed for the mineral interests, no one asserted any claim—much less a

claim for money damages—against the County. The County did not seek dismissal of

Hughes’s or SMU’s claims; it knew as well as anyone that those claims did not implicate

the County’s governmental immunity.


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       If the County had filed a jurisdictional plea or motion to dismiss Hughes’s claim in

the probate proceeding, the trial court would (or, at least, should) have denied the plea

outright—not because Reata’s abrogation rule applied, but because immunity did not apply

at all. Governmental immunity bar suits and claims against the state and its political

subdivisions. Id. at 374; see also Nazari v. State, 561 S.W.3d 495, 500 (Tex. 2018) (“The

common-law doctrine of sovereign immunity prohibits suits against the state unless the

state consents and waives its immunity.”) (emphasis added). It does not bar claims that

compete with a governmental entity’s claims to property held by another. Because Hughes

never asserted claims against the County in the probate proceeding, we need not concern

ourselves with whether the County voluntarily engaged in the litigation, whether Hughes’s

claim to the mineral interests was germane, connected, and properly defensive to the

County’s competing claim to the same interests, or whether Hughes’s claim would serve

to offset the County’s recovery. Governmental immunity simply did not apply to Hughes’s

claim, and Reata is irrelevant to that analysis.

       For centuries, courts and commentators have agreed that sovereign immunity bars

suits and claims that private parties initiate against the government. English law recognized

that “no suit or action can be brought against the king, even in civil matters, because no

court can have jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *242

(emphasis added). Based on that tradition, the U.S. Supreme Court has long admonished

that “the entire judicial power granted by the Constitution does not embrace authority to


                                              3
entertain a suit brought by private parties against a state without consent given.” In re State

of New York, 256 U.S. 490, 497 (1921) (emphasis added); see also Beers v. State, 61 U.S.

(20 How.) 527, 529 (1857) (calling sovereign immunity “an established principle of

jurisprudence in all civilized nations”). And this Court too, in refining its own body of

immunity jurisprudence, has followed the same rule: a “suit against the State” is generally

forbidden “without the consent of the Legislature.” Griffin v. Hawn, 341 S.W.2d 151, 152

(Tex. 1960) (emphasis added); see Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74

S.W.3d 849, 853 (Tex. 2002) (virtually same).

       But immunity is not implicated just because the government is a party to a lawsuit.

Courts must have jurisdiction over some cases in which the government is a party, or else

the government could never initiate or intrude in litigation. See JOSEPH STORY, A FAMILIAR

EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES § 332 (The Lawbook

Exchange, Ltd. 1999) (1840) (explaining that article III, section 2 of the federal

Constitution was meant to allow the government to sue to enforce its own rights and

privileges); Emp’s of Dep’t of Pub. Health & Welfare v. Dep’t of Pub. Health & Welfare,

411 U.S. 279, 317 (1973) (Brennan, J., dissenting) (highlighting the framers’ belief that a

suit could be maintained “where the State is the plaintiff or an intervenor”); Kinnear v.

Comm’n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam) (recognizing that

the Commission’s immunity from suit was not at issue because “the Commission initiated

this proceeding”). Here, the trial court had jurisdiction to resolve the County’s claim to the


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mineral interests. Hughes’s competing claim asserting ownership of those same interests

did not implicate governmental immunity because Hughes did not assert any claims against

the County. 1 And when governmental immunity does not apply, it need not and cannot be

“abrogated”—under Reata or any other theory.

                                                          II.

         In this proceeding, however, Hughes does assert a claim against the County, seeking

damages for the County’s alleged breach of the parties’ agreement to settle their competing

claims in the probate proceeding. Generally, governmental immunity bars a contract claim

for damages against a governmental entity unless the legislature has waived that immunity.

See Nazari, 561 S.W.3d at 500. A plurality of the Court recognized an exception to that

general rule in Texas A & M University–Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002)

(plurality op.). The plurality reasoned that “when a governmental entity is exposed to suit

because of a waiver of immunity, it cannot nullify that waiver by settling the claim with an

agreement on which it cannot be sued.” Id. at 521. In other words, “having waived

immunity from suit in the Whistleblower Act, the State [could] not now claim immunity

from a suit brought to enforce a settlement agreement reached to dispose of a claim brought

under that Act.” Id. at 522–23. A claim seeking “enforcement of a settlement of a liability

for which immunity is waived [is not] barred by immunity.” Id. at 521.


         1
          Cf. Hughes v. Tom Green Cty., 553 S.W.3d 1, 6 (Tex. App.—Austin 2017) (mem. op.) (clarifying that
although “Hughes and the County had ‘competing claims’ for” the disputed interests, “they did not seek relief from
each other”) (emphasis added); see also id. (“In fact, the record reflects that Hughes and the County did not assert any
claims against each other in the [probate proceeding].”) (emphasis added).
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         This case differs from Lawson in that Hughes is not suing for breach of an agreement

settling claims for which the legislature had waived the County’s immunity. Hughes had

no need to argue waiver in the probate proceeding because he asserted no claims against

the County, so governmental immunity did not apply at all. But the plurality’s holding in

Lawson was not limited to situations in which immunity was waived: “If a government

entity    agrees    to   settle   a   lawsuit        from   which   it   is   not immune,   [it

cannot] claim immunity from suit for breach of the settlement agreement.” Id. at 518

(emphasis added). Here, the County agreed to settle Hughes’s competing claim in the

probate proceeding, and immunity did not bar that claim. Under Lawson, immunity does

not bar Hughes’s claim for breach of that agreement.

                                                III.

         Governmental immunity does not bar Hughes’s claim for the County’s alleged

breach of the parties’ settlement agreement because immunity did not bar the claim the

parties settled. But Reata has nothing to do with that conclusion. I respectfully disagree

with the Court’s reasoning, but I concur in its judgment.



                                                       _____________________
                                                       Jeffrey S. Boyd
                                                       Justice

Opinion delivered: March 8, 2019




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