


                           NO.  07-10-0247-CV

      IN THE COURT OF APPEALS

      FOR THE SEVENTH DISTRICT OF TEXAS

      AT AMARILLO

      PANEL D

      JANUARY  20, 2011

      ______________________________

                              MIKE LEACH,

                                                   Appellant

      v.

      TEXAS TECH UNIVERSITY,
Appellee

      ___________________________

      FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2009-550,359; HON. WILLIAM SOWDER, PRESIDING

      _______________________________

                                Opinion

                    _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      All political power is inherent  in  the  people,  and  all  free
      governments are founded on their authority,  and  instituted  for
      their benefit.  The faith of the people of Texas  stands  pledged
      to the preservation of a  republican  form  of  government,  and,
      subject to this limitation only,  they  have  at  all  times  the
      inalienable right to alter, reform or abolish their government in
      such manner as they may think expedient. [1]

      The issues before us today implicate the above quoted section  of
our state constitution.   We have been asked to determine  whether  the
common law doctrine of sovereign  immunity  barred  the  suit  of  Mike
Leach against Texas Tech University (the  University),  its  Chancellor
Kent Hance, its regents Jerry Turner and Larry  Anders,  its  president
Guy   Bailey,   its   athletic   director   Gerald   Myers,   and   its
employee/attorney Charlotte Bingham.  Applying the doctrine via a  plea
to the court’s jurisdiction, the trial  court  dismissed  all  but  one
cause of action averred by Leach.  The one  remaining  encompassed  the
allegation of breached contract.  The trial court  refused  to  dismiss
it because the University “by and through its  conduct  .  .  .  waived
[its] immunity from suit ….”  We affirm in part, reverse in  part,  and
render in part the trial court’s order.
                           Standard of Review
      Who did what to whom and why is not  something  this  court  will
decide.  Nor do we address the veracity of any of the many  accusations
levied by the parties against each other and third  parties.   That  is
not within our authority when addressing whether a  trial  court  acted
properly in granting a plea to its jurisdiction.  This  is  so  because
such a plea focuses upon the  trial  court’s  authority  to  eventually
adjudicate the dispute on its merits; it is not itself an  adjudication
on the merits.
      Next, a plea to  the  trial  court’s  jurisdiction  likens  to  a
motion for summary  judgment.   Tex.  Dep’t  of  Parks  &  Wildlife  v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004).  So, the  jurist  considering
it is  obligated  to  1)  interpret  the  pleadings  in  a  light  most
favorable to the party attempting to sustain the court’s  jurisdiction,
i.e. Leach, 2) accept as true all evidence  favorable  to  that  party,
and 3) indulge in every reasonable inference arising from the  evidence
and favorable to him.  Id.;  accord  City  of  Elsa  v.  Gonzalez,  325
S.W.3d 622, __ (Tex. 2010).
                     A Simplistic Review of History
      Given the nature of the issues at bar, it  is  helpful  to  delve
into the history underlying the doctrine of  sovereign  immunity.   The
latter found its genesis in old England.  Then,  as  most  will  admit,
the king (or queen as the case may be)  was  omnipotent.   No  inherent
authority belonged to those over whom he lorded.  Kemper v. State,  138
S.W. 1025, 1043 (Tex. Crim App. 1911), overruled on  other  grounds  by
Robertson v. State, 142 S.W. 533 (Tex. Crim. App. 1911).   Rather,  any
rights or privileges they  enjoyed  were  no  greater  than  those  the
monarch deigned to bestow on them.  Moreover,  the  judiciary  that  he
created not only recognized this relationship between the king and  his
people but also deduced from it that since  the  former  was  sovereign
over all, the latter could not be sue him without his approval.   Thus,
the tenet was of neither legislative nor  executive  origin.   Instead,
judges  simply  declared  it  to  be  law.[2]   Tex.  A&M   University-
Kingsville v. Lawson, 87 S.W.3d 518,  520  (Tex.  2002)  (stating  that
“the bar of sovereign immunity is a creature of the common law and  not
of any legislative enactment”).
       With  the  discovery  and  population  of  the  New  World,  our
forefathers  were  called  upon  to  establish  their  own  system   of
government.  Having rebelled against the tyranny of British  rule,  one
would think that they would instill a  government  of  limited  powers.
Indeed,  the  constitutional  passage   written   above   purports   to
encapsulate that sentiment.   Nonetheless, not all things British  were
rejected for our own courts adopted much of the  common  law  developed
overseas.  And, included in that  body  of  law  was  the  doctrine  of
sovereign immunity.  See Harris County Hosp. Dist. v. Tomball  Regional
Hosp., 283 S.W.3d 838, 844 (Tex. 2009) (recognizing sovereign  immunity
as part of the common law).  So, though we have  no  king  and  despite
the words of article 1, §2 of our Texas  Constitution,  the  government
(e.g., State, county, and municipalities) and those working for  it  in
their official  capacities  came  to  enjoy  that  created  to  protect
monarchs so many years ago.[3]
                     The Law of Sovereign Immunity
      We wish not to mislead.  It is clear that sovereign  immunity  is
alive and well in Texas.  As  it  now  exists,  it  provides  a  double
shield to the entities it  protects.   They  are  insulated  from  both
liability and suit.   Tex.  A&M  University-Kingsville  v.  Lawson,  87
S.W.3d at 520-21; Federal Sign v. Texas S. Univ., 951 S.W.2d  401,  405
(Tex. 1997).  That is, one can  neither  sue  for  payment  nor  compel
payment from the State without legislative consent.   Federal  Sign  v.
Texas  S.  Univ.,  951  S.W.2d  at  405.   Given  this  double  shield,
defeating one still meant the other stood.   Take,  for  instance,  the
subject of contracts.  In  Texas,  when  the  State  executes  such  an
obligation it loses its immunity from liability.  Id. at 405-06.   Yet,
it remains protected from being forced into litigation via  suit.   Id.
So, while it must perform and, like any other party to a  contract,  is
responsible for its failure to do so, it cannot  be  sued  for  damages
without its permission if it opts  to  forego  performance.   In  other
situations, the converse is also true; the  State  may  grant   someone
permission to sue it but retain its insulation  from  being  forced  to
pay.  Id.; Ben Bolt-Palito Blanco Consol. Indep.  Sch.  Dist.  v.  Tex.
Political Subdivision Prop./Cas. Joint Self-Insurance Fund, 212  S.W.3d
320, 323-24 (Tex. 2006) (explaining the nature of the  immunity).   The
logic behind that circumstance is not ours to debate for  that  is  the
law as declared by our Supreme Court.
       That  sovereign  immunity  extends  to  state  universities   is
similarly clear.  Ben Bolt- Palito Blanco Consol. Indep. Sch. Dist.  v.
Tex. Political Subdivision Prop./Cas. Ins. Joint  Self-Insurance  Fund,
212 S.W.3d at 324.  Of less clarity, however, is the manner by which  a
university or the State, for that matter, waives immunity.
       Admittedly,  our  Supreme  Court  has  declared  that   it   has
“consistently deferred to the Legislature” to effectuate  waiver.   Id.
at 326, quoting Tex. Natural Res. Comm’n  v. IT-Davy,  74  S.W.3d  849,
854 (Tex. 2002).  That is, we have been told that only the  legislature
can remove the insulation.  Id.  This purportedly is  so  because  that
body “is better suited . .  .  to  weigh  conflicting  public  policies
associated with waiving  immunity  and  subjecting  the  government  to
increased liability, the burden of which the public  must  bear.”   Id.
Moreover, the legislature accepted the  onus  of  determining  when  to
lower the shield, as exemplified by statutes such  as  the  Texas  Tort
Claims Act, Tex. Civ. Prac. & Rem. Code  Ann.  §101.021  (Vernon  2005)
(stating when governmental entities may be sued for torts committed  by
their employees).  Legislative writings with that effect, though,  tend
to be the exception, not the rule.  And, that the  legislature  intends
to keep waiver as the exception is borne out by §311.034 of  the  Texas
Government Code.  Via the provision, our representatives declared  that
“a statute shall not be construed as a waiver…  unless  the  waiver  is
effected by clear and unambiguous  language.”   Tex.  Gov’t  Code  Ann.
§311.034 (Vernon Supp. 2010).  What this means, then,  is  that  unless
the words of a statute controlling a  particular  dispute  between  the
government and its wards clearly and unambiguously specify that one  or
both  aspects  of  immunity  are  removed,  the   governmental   entity
continues to enjoy its judicially  created  insulation  against  paying
damages.  See City of El Paso  v.  Heinrich,  284  S.W.3d  366,  368-69
(Tex. 2009) (holding that sovereign immunity protects  an  entity  from
suit for monetary, as opposed to equitable, relief).
      Reading §311.034 of the Government Code and our  Supreme  Court’s
utterances about deferring to the legislature would seem to  belie  our
prior observation that the manner of waiving immunity  falls  short  of
clear.   But, they do not; instances continue to arise  supporting  our
observation.   For  example,  in  Tex.  A&M  University-Kingsville   v.
Lawson, the Supreme Court had before it a  factual  scenario  involving
the university’s refusal to  abide  by  a  settlement  agreement.   The
latter encompassed the  resolution  of  a  whistleblower  claim.   And,
though the legislature waived its  immunity  from  suits  founded  upon
such claims per §554.0035  of  the  Texas  Government  Code,  Tex.  A&M
University-Kingsville v. Lawson, 87 S.W.3d  at  521  (so  stating),  it
said nothing about the waiver encompassing  agreements  settling  those
suits.  Id.   Neither  that  omission  nor  the  prior  comments  about
deferring to the legislature dissuaded a majority of the Texas  Supreme
Court, though, from concluding that Lawson was not barred by  sovereign
immunity from suing Texas A&M for breaching  the  settlement.   Id.  at
522-24.
      Another opinion of the Supreme Court also tending  to  muddy  the
waters  is  Federal  Sign  v.  Texas  Southern  University.   There,  a
majority of justices first said that the decision to abrogate  immunity
lay with the “. . . Legislature's sole province .  .  .  .  ”   Federal
Sign v. Texas S. Univ., 951 S.W.2d at 409.   Then, that  same  majority
wrote:

      We hasten to observe that neither this case nor the ones on which
      it relies should be read too  broadly.   We  do  not  attempt  to
      decide this issue in any  other circumstances other than the  one
      before us today.  There may  be  other  circumstances  where  the
      State may  waive  its  immunity  by  conduct  other  than  simply
      executing a contract so that it is not always  immune  from  suit
      when it contracts.

Id. at 408 n.1.  Justice Hecht echoed that cautionary  statement  in  a
concurring opinion.  Joined by  Chief  Justice  Phillips  and  Justices
Cornyn and Owen, he said that “[c]ategorical statements in the  Court's
opinion must be read in this context.”  Id. at 413.  He then  mentioned
various “hypotheticals” wherein “. . .  the State  may  waive  immunity
by conduct . . . so that it is not always immune from contract  suits.”
 Id.  Such observations hardly comport with  the  idea  that  only  the
legislature  can  decide  when,  where,  and  how  to  waive  sovereign
immunity.
       In  reading  Federal  Sign,  Texas  A&M,  and  §311.034  of  the
Government Code, we are  left  feeling  somewhat  like  a  dog  chasing
quarry that only runs in circles.  We strive to  reach  the  designated
end only to find ourselves back at the beginning.   Nevertheless,  from
the foregoing precedent generalities can be garnered.  If  one  invokes
a statute as basis for defeating immunity, that  statute  must  clearly
and unambiguously abrogate the shield.  Tex. Gov’t Code  Ann.  §311.034
(Vernon Supp. 2010).  On the other hand, if  the  purported  waiver  is
founded upon non-statutory grounds, then we must  search  precedent  to
determine whether the factual situation has already been  addressed  by
the Supreme Court.   E.g.,  Federal  Sign  v.  Texas  S.  Univ.,  supra
(wherein the court  clearly  held  that  executing  a  contract  waives
immunity from liability).  If that court has not, then we defer to  the
legislature’s general authority to act on the matter, except  when  the
circumstances compel the judiciary to intervene, if ever.    With  that
said, we turn to the issues posed to us by the parties.
            Application of Sovereign Immunity – Leach Issues
     A. Waiver by Operating Procedure
      We first address Leach’s argument that the University’s  immunity
was waived by statute.  The statute in question is §109.001(c)  of  the
Texas Education Code.  Through it, the legislature wrote:

            The governance, control, jurisdiction,  organization,  and
      management  of the Texas Tech University System is hereby  vested
      in the present board of regents of Texas Tech  University,  which
      will hereinafter be known and designated as the board of  regents
      of the Texas Tech University  System.   The  board  by  rule  may
      delegate a power or duty of the board to an officer, employee, or
      other agent of the board.


Tex. Educ. Code Ann. §109.001(c) (Vernon 2002).   Per that  grant,  the
University enacted specific “operating policy and procedures”  allowing
an employee to “elect to remove such issues of grievance  or  complaint
from further consideration through . . .”  the school’s  administrative
process if the employee “files substantially the same  issues   .  .  .
with any external agency or court  .  .  .  .”   Leach  reads  this  as
consent from the University to sue it in state court.  We disagree  for
several reasons.
      First, and assuming arguendo that any state-supported  university
has the power to waive its immunity, such a waiver is not  explicit  in
the “operating policy and procedures” at issue.   Recognizing  that  an
employee  may  end  an  internal  grievance  proceeding  if  the   same
complaint is encompassed within a later  suit  speaks  to  whether  the
person must exhaust internal administrative remedies before suing.   It
does not speak to the matter of waiving immunity.  Indeed,  nothing  in
the procedure even mentions  immunity,  much  less  its  waiver.   And,
there  are  situations  requiring  the  exhaustion  of   administrative
remedies before suit may be filed, such as when someone alleges  claims
under the Texas Whistleblower Act.  See Tex. Gov’t Code  Ann.  §554.006
(Vernon  2004)  (requiring  the  aggrieved  employee  to  exhaust   his
existing administrative remedies before filing suit).   See  also  Tex.
Civ. Prac. & Rem. Code Ann. §101.101(a) (Vernon 2005).
      Second, that  the  University’s  legal  counsel,  chancellor,  or
president may have thought Leach  had  the  ability  to  prosecute  his
claims  in  a  court  of  law  (as  Leach  posits)  is  of  no  moment.
Admittedly, someone’s personal opinion about the meaning of  rules  and
regulations may be informative or  interesting.   Yet,  they  are  just
that, opinions that may be informative or interesting.   They  have  no
binding effect on a court since the latter  construes  legal  writings,
such as rules and statutes, de novo.  City of San Antonio  v.  City  of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (holding that statutes and  rules
are subject to de novo review).
      Finally, and to the extent Leach  argues  that  the  University’s
operating procedures are comparable to state statutes, we abide by  the
legislature’s unambiguous directive regarding the waiver  of  immunity.
Again, per that directive,  a  statute  “shall  not  be  construed”  as
waiving  immunity  unless  the  “waiver  is  effected  by   clear   and
unambiguous language.”  Tex. Gov’t Code  Ann.  §311.034  (Vernon  Supp.
2010).   Those words plainly mean  that  any  waiver  one  attempts  to
derive from a statute must be clear and unambiguous.  And, the  statute
underlying Leach’s claim of waiver is §109.001(c).  According  to  him,
it purports to vest the University’s regents with the power to do  most
anything they want,  including  the  power  to  waive  immunity.   Yet,
nothing in it expressly addresses immunity or  its  waiver.   Nor  does
Leach cite us to authority suggesting that  the  legislature  even  had
the topic of immunity in mind when enacting the provision.  So,  if  we
were to accept  Leach’s  contention,  we  would  have  to  say  that  a
legislative statement omitting all explicit or  implicit  reference  to
immunity actually encompasses that subject.  Though some  may  find  it
fun to engage in creative legal gymnastics to achieve  a  desired  end,
we opt not to join them.   Instead,  our  decision  is  to  reject  the
notion that  by  enacting  §109.001(c)  the  legislature  unambiguously
permitted the  University  to  waive  its  immunity.    See  Foster  v.
Teacher Ret. Sys., 273 S.W.3d 883, 886-87 (Tex.  App.–Austin  2008,  no
pet.) (rejecting the argument that because the legislature  vested  the
Texas Retirement System with the power to  adopt  necessary  rules  and
procedures, the System had the implied power to waive its immunity  and
stating that administrative agencies created by the legislature  cannot
waive immunity on behalf of the legislature).
     B.  Whistleblower Claim
      Next, Leach argues that the trial court erred in  dismissing  his
whistleblower claim.  We again disagree and overrule the issue.
       It is true that suits upon claims arising under what we know  as
the Texas Whistleblower’s Act, Tex. Gov’t Code Ann.  §554.001  et  seq.
(Vernon 2004) are not barred by  sovereign  immunity.   Id.  §554.0035.
Nonetheless, to enjoy that freedom to sue, the complainant  must  plead
facts establishing jurisdiction.  In other words, he must allege  facts
in his original petition  satisfying  the  elements  of  the  cause  of
action for which immunity has been waived.  See  State  v.  Lueck,  290
S.W.3d  276,  883-85  (Tex.  2009)  (holding  that  the   elements   of
§554.002(a) can  be  considered  to  determine  both  jurisdiction  and
liability).  That did not happen here.  Nor do we  think  his  petition
is capable of being amended to meet the  requirement  given  the  facts
involved.
       The Whistleblower Act forbids a  “state  or  local  governmental
entity . . . [from] suspend[ing] or terminat[ing]  the  employment  of,
or tak[ing] other adverse personnel action against, a  public  employee
who in  good  faith  reports  a  violation  of  law  by  the  employing
governmental entity or another public employee to  an  appropriate  law
enforcement authority.”   Tex.  Gov’t  Code  Ann.  §554.002(a)  (Vernon
2004).   Furthermore,  a  “report  is  made  to  an   appropriate   law
enforcement authority if the authority”  receiving  the  report  “is  a
part of a state or local governmental entity . . .  that  the  employee
in good faith believes is  authorized  to  .  .  .  regulate  under  or
enforce the law alleged to be violated . . . or .  .  . investigate  or
prosecute a violation of criminal law.”  Id.  §554.002(b).   Here,  the
alleged report consisted of Leach filing suit against  the  University,
among others, in the district court.
       The legislature did not explain what it meant by  “report”  when
drafting §554.002.   Yet, we hold that it did not include the  specific
situation here, given applicable rules of statutory construction.   Per
those rules, our primary objective is to ascertain and give  effect  to
the legislature's intent.  Tex. DOT  v.  City  of  Sunset  Valley,  146
S.W.3d 637, 642 (Tex. 2004).  This obligates  us  to  consider  1)  the
plain and common meaning of the words utilized in the writing,  2)  the
context in which those words were used, 3) the objective sought by  the
legislature, and 4) the  consequences  of  a  particular  construction.
Id.; accord Tex. Gov’t Code Ann.  §311.011(a)  (Vernon  2005)  (stating
that when words appearing in a statute are not defined by  legislature,
those interpreting them must read them in  context  and  construe  them
according to the rules of grammar and common usage).
       According to the dictionary, a “report”  consists  of  relating,
disclosing, or accounting for particular facts,  events,  circumstances
or things.  See Merriam-Webster’s Collegiate Dictionary 1056 (11th  ed.
2003).  A report card, for instance, gives an account  of  a  student’s
grades while a police report relates the supposed facts  of  an  event.
So, if one was to only consider this  commonly  understood  meaning  of
report, it would be rather easy to conclude that an  original  petition
commencing a lawsuit falls within the realm of a report.  Indeed,  most
petitions,  if  appropriately  drafted,   disclose   circumstances   or
misconduct that the complainant  views  as  entitling  him  to  relief.
However, the  consideration  of  criteria  in  addition  to  the  plain
meaning of the word is necessary if we are to abide by the  mandate  of
the Supreme Court.
       One of those additional criteria is the context within which the
word appears.  The relevant  context  here  includes  reference  to  an
“appropriate law enforcement authority.”  Again, such an entity is  one
charged with the ability to enforce or regulate  the  laws  purportedly
breached or  investigate  the  breach  of  those  laws.   Tex.  DOT  v.
Needham, 82 S.W.3d 314, 319-20  (Tex.  2002).   The  description  calls
forth visions of police, administrative agencies,  district  attorneys,
the  attorney  general,  and  like  bodies  commonly  associated   with
investigating and enforcing the law.  It takes a much  greater  stretch
of the imagination to include a district  court  within  the  category.
Indeed, precedent recognizes that the role of  the  judiciary  excludes
investigative or executive functions of the type  contemplated  by  the
statute.   Robertson  County  v.  Wymola,  17  S.W.3d  334,  341  (Tex.
App.–Austin 2000, pet. denied) (involving a  whistleblower  complaint).
And, the void is not filled simply because a district  court  has  some
“general” authority to intercede  in  legal  matters,  especially  when
that  authority  is  adjudicative  as  opposed  to   investigative   or
regulatory.  See Tex. DOT v. Needham,  82  S.W.3d  at  319-20  (stating
that it is not enough for the  entity  to  have  general  authority  to
investigate or regulate a matter).
       We  further  note  that  portion  of  the  act   requiring   the
whistleblower  to  exhaust  administrative  remedies   before   seeking
judicial relief.  That is, the statute clearly obligates the  aggrieved
employee to “initiate action under the grievance or  appeal  procedures
of the  employing  state  or  local  governmental  entity  relating  to
suspension or termination of employment  or  adverse  personnel  action
before suing.”  Tex. Gov’t Code Ann.  §554.006(a)  (Vernon  2004).   It
makes little sense to have  this  requirement  if  filing  an  original
petition in a court of law constitutes an acceptable report  under  the
act.  See Wilson v. Arlington Indep. Sch.  Dist.,  No.  4:00-CV-0069-A,
2001 U.S. Dist. Lexis 10715, at *12 (N.D. Tex. July 26, 2001)  (stating
that unless administrative remedies are exhausted per  the  statute,  a
trial court lacks subject matter jurisdiction  over  the  whistleblower
complaint).  Indeed, to hold otherwise would be tantamount to  negating
the obligation to first pursue administrative avenues  of  relief,  and
we must endeavor to read a statute in a way that negates no portion  of
it.  Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).
       Simply  put,  the  factual  allegations  contained  in   Leach’s
petition, the context in which  the  word  “report”  appears,  and  the
traditional purpose of the judiciary lead us to conclude, as  a  matter
of law, that filing a lawsuit against the University and others  failed
to satisfy the mandate  of  §554.002(a).   This  is  not  to  say  that
circumstances unlike those at bar may lead to  a  different  result.[4]
But,  filing  suit  to  redress  claims  of   breached   contract   and
constitutional  deprivation  arising  from  the  termination   of   the
complainant’s job is not such a circumstance.
       As for the argument that all Leach needed  was  to  believe,  in
good faith, that his lawsuit constituted the requisite report,  we  say
the following.  It is true that the employee  need  only  have  a  good
faith belief that he is complying with  the  elements  of  §554.002(a).
Tex. DOT v. Needham, 82 S.W.3d at 320; Potter County v. Parton, No. 07-
03-0338-CV, 2005 Tex. App. Lexis  4381,  at  *8-9  (Tex.  App.–Amarillo
June 8, 2005, no pet.). Yet, good faith involves  more  than  what  the
employee may have believed  subjectively.   Potter  County  v.  Parton,
2005 Tex. App. Lexis  4381,  at  *8-9.   Rather,  the  phrase  has  two
components, one subjective (i.e. what the employee  actually  believed)
and the other objective (i.e. whether a reasonably  prudent  person  in
the same circumstances could have thought that).    Id.   And,  whether
the latter component  exists  depends  on  circumstances  such  as  the
information available to the employee, his  education  and  experience,
the nature of the dispute, and the nature of the entity  involved,  for
example.  See id. at *10 (describing the objective component  as  being
a “reasonable [belief] in light of [the reporting employee’s]  training
and experience”).
       Here,  the  complainant  was  a  successful  NCAA  division  one
football coach with a college degree  and  who  received  post-graduate
legal training.  One can reasonably assume  that  it  takes  a  bit  of
savvy and intelligence to successfully field a team at  that  level  of
play and navigate through the morass of  NCAA  rules  and  regulations.
Moreover,  a  person  having  such  an   educational   background   and
professional skills is somewhat  different  than  the  ordinary  layman
unskilled in interpreting technical or legal jargon.  To this,  we  add
the circumstance that Leach was not left alone  to  sojourn  through  a
legal maze once the University initiated steps to discipline  him.   He
had several attorneys to help him uncover, analyze, and apply the  laws
of  Texas.   Together,  they  not  only  dealt  with  the  University’s
allegations but also  filed  the  lawsuit  before  us.   Moreover,  the
judicial precedent and statutory  writings  upon  which  we  rely  were
available to  them,  as  well.   Given  this,  we  arrive  at  but  one
conclusion.  A reasonable person in the same circumstances  and  having
the same experience, education, and legal help as Leach would not  have
ignored statutorily  mandated  exhaustion  requirements  and  pertinent
judicial writings  to  deduce  that  filing  a  lawsuit  satisfied  the
elements of §554.002(a).[5]  In short, no evidence exists  enabling  us
to conclude that Leach satisfied the objective prong of  a  good  faith
belief.
     C.  Constitutional Claims

      We next address the  argument  that  the  trial  court  erred  in
dismissing Leach’s  constitutional  claims.   The  claims  in  question
involve the purported taking without compensation of  Leach’s  property
and his termination without due process.[6]  We overrule the issues  in
part.
           1. Takings Claim
      With regard to the takings claim, we  find  the  Supreme  Court’s
decision in General Servs. Comm’n  v.  Little-Tex  Insulation  Co.,  39
S.W.3d 591 (Tex. 2001) dispositive.  According to the Supreme Court  in
Little-Tex, to establish a takings claim, the  complainant  must  prove
1) that the State intentionally performed certain  acts,  2)  that  the
acts resulted in a “taking” of property, and 3) that the  property  was
taken for public use.  Id. at 598.  These elements  are  not  satisfied
when the State withholds property in a contractual  dispute.   This  is
apparently  so  because  the   party   demanding   compensation   after
performing his contractual duty to provide goods or  services  actually
provided those goods  or  services  voluntarily  as  opposed  to  being
forced to do so via the State’s power of eminent domain.  Id.  at  598-
99, quoting State v. Steck Co., 236 S.W.2d 866 (Tex.  Civ.  App.–Austin
1951, writ ref’d).  So, when the State withholds property  under  color
of a contractual right, such as when it believes the contract  was  not
properly performed, it is not acting as a sovereign invoking powers  of
eminent domain, but rather as a private party to  a  contract  invoking
rights expressed or implicit in the contract.  Id. at 599.   Thus,  the
takings clause appearing under Texas Constitution art. I, §17 does  not
apply to contractual disputes. [7]
      The compensation sought by and allegedly due Leach is that  which
the University contracted to pay him in return for his  performance  of
services as the  head  football  coach.   The  University  purports  to
withhold that compensation because Leach failed to abide by  the  terms
of their accord.  Thus, what we have  here  is  nothing  other  than  a
contractual dispute described in Little-Tex  and  which  falls  outside
the takings clause.
           2. Denial of Due Course of Law
      As for the dispute regarding due process, Leach  argues  that  he
was denied constitutionally protected interests without due  course  of
law.  The property rights at issue were to 1) continue  employment  for
a term of years (except when terminated  for  cause)  and  2)  specific
compensation accruing while  so  employed.   And  because  he  tendered
sufficient  evidence  establishing   the   constitutional   claim,   it
allegedly was error  for  the  trial  court  to  use  the  doctrine  of
sovereign immunity to dismiss it.  We sustain  the  issue  for  several
reasons.
      Sovereign immunity bars a trial court from adjudicating  lawsuits
through which a complainant seeks money damages from the  State.   Tex.
Natural Res. & Conservation Comm’n  v.  IT-Davy,  74  S.W.3d  849,  853
(Tex.  2002).   It  does  not  pretermit  legal   actions   against   a
governmental entity seeking equitable relief to redress  violations  of
the Texas Constitution.  City of Elsa v. M.A.L., 226  S.W.3d  390,  392
(Tex. 2007); City of Beaumont v. Bouillion, 896 S.W.2d 143,  149  (Tex.
1995); City of Arlington v.  Randall,  301  S.W.3d  896,  906-07  (Tex.
App.–Fort Worth 2009, pet. filed).  One means  of  determining  whether
constitutional violations have occurred that survive the invocation  of
sovereign immunity is through prosecuting a  declaratory  action.   Id.
at 908-09; Andrade v. NAACP  of  Austin,  287  S.W.3d  240,  251  (Tex.
App.–Austin 2009, pet.  granted).   Leach  requested  such  declaratory
relief here when seeking a declaration  of  whether  he  was  denied  a
constitutionally protected  interest  by  the  University  without  due
course of the law.  See Tex. Const. art. I,  §19  (stating  that  “[n]o
citizen of this State shall be deprived  of  life,  liberty,  property,
privileges or immunities, or in any  manner  disfranchised,  except  by
the due course of the law of the land”).  Admittedly, he  cannot  avoid
the shield of sovereign  immunity  by  simply  morphing  a  demand  for
monetary relief into one for declaratory relief, City  of  El  Paso  v.
Heinrich, 284 S.W.3d  at  370-71,  and  that  is  what  the  University
contended he did here.  That is, it argued  through  its  plea  to  the
court’s jurisdiction that his pleadings regarding  the  due  course  of
law violations were “a disguised attempt to obtain money damages  under
the 2009 Contract  recast  as  a  declaratory  judgment  claim.”   Yet,
whether Leach had a constitutionally protected  interest  (property  or
liberty) that was denied him without  due  process  is  quite  distinct
from whether the University breached the employment  contract.   It  is
possible for there to be a due process violation without  a  breach  of
contract or a breach of contract without a due process violation.   So,
simply because both types  of  claims  may  be  included  in  the  same
petition does not ipso facto mean that  the  constitutional  allegation
is a mere “disguised attempt to obtain money damages” for a  breach  of
contract.  Examining the nature of the relief sought  is  determinative
for one may invoke the jurisdiction of Texas courts via  a  declaratory
action to redress, through equitable remedies,  unconstitutional  acts.
City of Elsa v. M.A.L., supra.  So, the trial  court  had  jurisdiction
to declare whether Leach was denied due course of law  even  though  it
cannot  adjudicate  the  attempt  to  recover  damages  for  breach  of
contract.   The same may be true for  other  choses-in-action  that  he
may assert and which are independent of his breach of  contract  claim;
they must be assessed on an individual basis.
      D.  Dismissal of Bailey, Myers, and Bingham
      Leach next contends that the trial court erred in dismissing  the
claims asserted against President Bailey, Athletic Director  Myers  and
Vice-Chancellor Bingham in their official capacities simply because  he
had  sued  the  University  as  well.   We  dismiss   this   particular
contention for want of jurisdiction.
      The  trial  court’s  decision  was  not  founded  upon  sovereign
immunity but rather its construction of §101.106  of  the  Texas  Civil
Practice and Remedies  Code.   The  latter  deals  with  a  plaintiff’s
decision to sue both a governmental unit and  its  employees  and  bars
the plaintiff from suing both.   Tex.  Civ.  Prac.  &  Rem.  Code  Ann.
§101.106(a) (Vernon 2005) (stating that the filing of a suit under  the
tort claims act against a governmental unit constitutes an  irrevocable
election by the plaintiff and bars any suit  or  recovery  against  the
individual employee regarding the same subject matter).
      Next, our jurisdiction is not plenary.  We can only review  suits
wherein a final judgment or order has been entered.   Lehmann  v.  Har-
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  This is not  true,  though,
if the dispute encompasses an issue addressed in §51.014 of  the  Texas
Civil Practice and Remedies Code.  In such situations, we may  consider
the dispute though the trial court has yet to  dispose  of  the  entire
action.  Tex. Civ.  Prac.  &  Rem.  Code  Ann.  §51.04  (Vernon  2005).
Dismissing governmental employees under §101.106 because the  plaintiff
sued their employer falls within none of  the  categories  itemized  in
§51.014.  It does  not  involve  1)  receivers  or  trustees  or  their
appointment or removal, 2) a temporary injunction, 3) the denial  of  a
motion for summary judgment based on an assertion  of  immunity,  4)  a
special appearance, 5) a plea to the trial court’s  jurisdiction  filed
“by a governmental unit,” or any other topic mentioned in the  statute.
 So, because the order of dismissal from which appeal  was  taken  does
not dispose of all claims asserted against all defendants  (i.e.  Craig
James, Larry Anders, and Jerry  Turner)  we  have  no  jurisdiction  to
resolve this aspect of the  appeal.   The  particular  dispute  remains
before the trial court should it  care  to  consider  its  decision  in
light of the Supreme Court’s recent opinions in Tex. Lottery Comm’n  v.
First State Bank of DeQueen, 323 S.W.3d 628 (Tex. 2010) and City of  El
Paso v. Heinrich.
                       The University’s Appellate Issues
     A. Breach of Contract
      Through its sole issue, the  University  argues  that  the  trial
court  erred  in  refusing  to  dismiss  Leach’s  breach  of   contract
allegation.  Again, the  trial  court  refused  to  do  so  because  it
reasoned that the University “waived its immunity from suit .  .  .  by
and through its conduct.”  We sustain the issue.
      As previously mentioned, the Supreme Court left open, in  Federal
Sign, the question of whether the state entity may waive  its  immunity
through its conduct.    Yet,  whether  the  idea  of  waiving  immunity
through conduct extends  to  choses-in-action  sounding  in  breach  of
contract is not an open question.  In General Servs. Comm’n. v. Little-
Tex Insulation Co., Little-Tex sued Texas A&M for  breach  of  contract
and argued that  the  school  waived  its  immunity  by  accepting  the
benefits of the contract.  The proposition was rejected by the  Supreme
Court after acknowledging that  it  had  left  open  “the  question  of
whether  the  State’s  conduct  may  waive  its  immunity  from  suit.”
General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d  at  595.
The Court rather clearly stated that “there is but  one  route  to  the
courthouse for breach-of-contract claims against the  State,  and  that
route is through the Legislature.”  Id. at 597;  accord  Tex.  Parks  &
Wildlife Dep’t v E. E. Lowrey Realty, Ltd., 235  S.W.3d  692,  695  n.2
(Tex. 2007) (stating  that  “Lowrey  could  only  pursue  a  breach  of
contract claim against the  State  if  he  first  obtained  legislative
consent . . .”); Tex. Natural Res. Conservation Comm’n. v. IT-Davy,  74
S.W.3d  at  856-57  (rejecting  application  of  the  waiver-by-conduct
doctrine in breach of contract suits  and  reaffirming  that  only  the
legislature can waive immunity).
      Admittedly, the factual circumstances in Little-Tex  differ  from
those before us.  And, because of that Leach argues  that  the  holding
does not control  the  outcome  here.   Though  the  circumstances  may
differ between the two suits, the Supreme Court in Little-Tex  actually
focused not upon the facts underlying the cause of  action  but  rather
upon the cause of  action  itself,  that  is,  the  claim  of  breached
contract.  Nor did it simply say that  a  governmental  entity  retains
its immunity even though it accepted contractual benefits.  Rather,  it
told us that there was only one way the State could be sued for  breach
of  contract  and  that  involved  first  garnering  the  legislature’s
approval via chapter 107 of  the  Texas  Civil  Practice  and  Remedies
Code.   See Employees Retirement Sys. v. Putnam, LLC., 294 S.W.3d  309,
327 (Tex. App.–Austin 2009, no  pet.)  (also  recognizing  the  Supreme
Court’s “rejection of  the  waiver-by-conduct  doctrine  since  Federal
Sign” in suits for breached contract).
      We also recognize that our  opinion  contradicts  that  in  Texas
Southern University v. State Street Bank & Trust Co.,  212  S.W.2d  893
(Tex. App.–Houston [1st Dist.] 2007, pet. denied).  In that  breach  of
contract  case,  the  intermediate  court  of  appeals  held  that  the
University’s conduct resulted in the  waiver  of  its  immunity.   That
decision,  however,  contradicts  the  Supreme  Court’s  statements  in
Little-Tex, IT-Davy, and E. E.  Lowrey  Realty,  Ltd.  about  the  only
avenue for  redress  being  through  the  Texas  Legislature.   If  the
highest civil court in  Texas  truly  means  what  it  said,  then  the
holding in State Street simply is wrong.  If, on the other hand,  there
may still be instances akin to those in  State  Street  warranting  the
application  of  waiver  by  conduct,  then   the   Supreme’s   Court’s
utterances about the legislature  having  the  exclusive  authority  to
waive sovereign immunity are inaccurate.   In  either  case,  it  is  a
matter for the Supreme Court (or Texas Legislature) to resolve, and  we
have no choice but to abide by their decision.
       In sum, we reverse those portions of the trial court’s order  1)
dismissing, for want of jurisdiction, Leach’s due course of  law  claim
and request for non-monetary declaratory and equitable  relief  founded
upon it and  2)  concluding  that  Texas  Tech  University  waived  its
sovereign immunity from  the  breach  of  contract  claim  due  to  its
conduct.  We next dismiss, for  want  of  jurisdiction,  the  appellate
issue involving  whether  Bailey,  Myers,  and  Bingham  were  properly
dismissed by the trial court, render judgment dismissing Leach’s  claim
of breached contract against the University, and affirm  the  remainder
of the order granting the pleas to the trial court’s jurisdiction.


                                        Brian Quinn
                                             Chief Justice


       -----------------------
      [1]Tex. Const. art. I, §2.
      [2]Dare we infer that this was an early example of judicial
activism?
      [3]Some may think  it  ironic  that  sovereign  immunity  remains
viable  given  the  wording  of  our  Texas  Constitution.   Again,  it
mandates that “[a]ll political power is inherent  in  the  people,  and
all free governments are founded on  their  authority,  and  instituted
for their benefit.”  Tex. Const. art. I, §2  (emphasis  added).   Thus,
true sovereignty lies in the people of Texas, not the  government  they
created.  Kemper v. State, 138 S.W. 1025, 1043 (Tex. Crim. App.   1911)
(stating that “[t]he rule in America is that the  American  people  are
the sovereigns, and in them is lodged all power, and  the  agencies  of
government possess no authority save that which is  delegated  to  them
by the people in  the  written  compact .  .  .  which  is  styled  the
‘Constitution’ . . . .”).  That the true sovereign may be subjected  to
suit without consent while their creation cannot seems to diminish  the
meaning of art. I, §2 of the Constitution.
      [4]For instance, a district judge may  well  be  the  appropriate
authority with whom to file a report  if  the  complaint  involves  the
misconduct of a county auditor.  Since the latter post is filled  by  a
district judge, Tex. Loc. Gov’t  Code Ann.  §84.002(a)  &  (b)  (Vernon
2008), and  the  district  judge  also  may  remove  the  auditor,  id.
§84.009, then a district judge may be the one best able to address  the
incident.   But, that is not a question we must decide today.
      [5]That Leach cites us to City of Elsa v.  Gonzalez,  292  S.W.3d
221 (Tex. App.–Corpus Christi 2009) rev’d,  2010 Tex. Lexis  693  (Tex.
October 1, 2010) as indicating that a constitutional county  judge  may
be an acceptable authority with whom to file a report is of no  import.
 This is so for several reasons.  First,  the  Supreme  Court  reversed
the cited opinion and instead held that Gonzalez failed to satisfy  the
need to file, in good faith, a report  with  the  pertinent  authority.
City of Elsa v. Gonzalez, No. 09-0834, 2010  Tex.  Lexis  693,  at  *15
(Tex.  October  1,  2010).   Second,  the  office  and  duties   of   a
constitutional county judge are quite different from those of a  county
court at law or district  court  judge.    Admittedly,  each  exercises
adjudicative powers, but a constitutional county court  judge  actually
acts as the administrative head of the county and runs, with  the  help
of commissioners, that level of government.  So, the hat  he  wears  is
also  highly  legislative  and  executive  in  nature.   Moreover,   in
performing his  legislative  and  executive  duties,  a  constitutional
county judge is much more likely to be lawfully obliged to  investigate
and regulate matters of the county and coffers he oversees  than  would
be a district judge viz the conduct of a  state  chartered  university.
Finally, and as noted  by  the  Supreme  Court  in  its  City  of  Elsa
opinion, the appropriate authority contemplated  in  the  Whistleblower
Act is one that can do more than simply act in a remedial manner.   Id.
at *14, citing Duvall v. Tex. Dep’t of Human Services, 82  S.W.3d  474,
481-82 (Tex.  App.–Austin  2002,  no  pet.).   Since  a  constitutional
county court judge exercises  legislative  and  executive  powers,  his
post affords him greater ability to act in ways  other  than  remedial.
The same generally cannot be said of either a county court at  law  and
district court judge whose acts  are  remedial  in  nature,  i.e.  they
adjudicate disputes and remediate purported wrongs.
      [6]According to  his  live  pleading,  Leach  restricts  his  due
process claim to the rights emanating from art. I,  §19  of  the  Texas
Constitution.  Nothing is said about the Due Process  Clause  contained
in either the Fifth or  Fourteenth  Amendments  to  the  United  States
Constitution.


      [7]That the State is not acting as  a  sovereign  (but  rather  a
private  party)  when  withholding  money  due  under  a  contract  but
nonetheless enjoys  immunity  from  suit  for  withholding  that  money
because it is deemed the sovereign is somewhat of a contradiction.   No
doubt  there   is   a   reasonable   explanation   for   the   apparent
inconsistency, and the  Supreme  Court  is  in  the  best  position  to
explain it.


