



Lindsey v. State                                                    



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-90-169-CV



PAUL LINDSEY, INDIVIDUALLY AND AS GUARDIAN OF 
LINDA JILL LINDSEY, AND GAYLE LINDSEY,


	APPELLANTS


vs.



STATE OF TEXAS,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 347,864, HONORABLE JOSEPH H. HART, JUDGE 

 


	Paul and Gayle Lindsey, acting individually and on behalf
of their daughter, Linda Jill Lindsey, sued the State of Texas
alleging: (1) intentional, grossly negligent, or negligent failure
to provide Linda Jill with educational services mandated by the
Texas Education Code; and (2) discrimination under 42 U.S.C. § 1983
(1981).  Based on federal law, the trial court granted a take-nothing summary judgment as to the section 1983 claim.  The court
later granted a take-nothing summary judgment, based on
governmental immunity, as to the remaining claims.  The Lindseys
appeal, challenging only the trial court's governmental-immunity
ruling.  We will affirm.
	Born in 1965, Linda Jill Lindsey is deaf and emotionally
disturbed.  The Texas Education Code provides that "[t]he Texas
School for the Deaf shall: (1) provide educational services on a
day or residential basis to deaf students for whom adequate educational opportunities are unavailable in their local or
regional programs."  Tex. Educ. Code Ann. § 11.03(i)(1) (1991). 
The Education Code also provides:

The Texas School for the Deaf shall provide the services
listed in Subdivisions (1) through (3) of Subsection (i)
of Section 11.03 of this code to any student who is an
eligible handicapped student referred by a state agency
or by the governing board of a school district through
the agency's or district's admission, review, and
dismissal committee and for whom the school is the
appropriate placement.

Tex. Educ. Code Ann. § 11.032(a) (1991).
	Although medical advice indicated that Linda Jill needed
a structured twelve-month school program, and although the Lindseys
and their local school district requested such a program for her,
the Texas School for the Deaf did not provide it.  The Lindseys
felt that this failure violated the foregoing sections of the
Education Code.
	In 1981 the Lindseys obtained from the legislature
passage of a resolution permitting them to sue the State for any
injuries resulting from the State's actions regarding Linda Jill. 
See Tex. S. Con. Res. 69, 67th Leg., 1981 Tex. Gen. Laws 3911. 
Although the resolution permitted the Lindseys to sue the State, it
contained the following provisions:

	RESOLVED, That  nothing in this resolution may
be construed as an admission by the State of Texas or by
any of its employees, agents, departments, agencies, or
political subdivisions of liability or of the truth of
any allegations asserted by the claimant, but the alleged
cause of action must be proved under the laws of this
state as in other civil suits; and, be it further
	RESOLVED, That nothing in this resolution may
be construed as a waiver of any defense of law or fact
available to the State of Texas or to any of its
employees, agents, departments, agencies, or political
subdivisions, but every defense is specifically reserved.

Tex. S. Con. Res. 69, supra.
	In May 1983 the Lindseys filed the present suit.  In
February 1990, based on Will v. Michigan Dep't of State Police, 105
L.Ed.2d 45 (1989), the trial court granted partial summary judgment
against the Lindseys on their section 1983 claim; the Lindseys do
not complain of that ruling in this appeal.  Based on governmental
immunity, the trial court later granted summary judgment against
the Lindseys on their claims for intentional, grossly negligent, or
negligent violation of the various provisions of the Education
Code.
	The Lindseys challenge the trial court's governmental-
immunity ruling on two grounds: (1) that the senate concurrent
resolution waived the State's immunity from liability as well as
its immunity from suit; and (2) that the sections of the Education
Code quoted above provide a sufficient "legal obligation existing
under prior law" to avoid the State's immunity from liability.
	The Lindseys first argue that Senate Concurrent
Resolution No. 69 waived the State's immunity from liability as
well as its immunity from suit.  This proposition has been resolved
adversely to the Lindseys on numerous occasions.  For example, in
State v. McDonald, 220 S.W.2d 732 (Tex. Civ. App. 1949, writ
ref'd), the court rejected the same contention as to a similarly
worded resolution.  Recognizing the distinction between immunity
from suit and immunity from liability, the court held that the
paragraph of the resolution reciting that "nothing herein shall be
construed as an admission of liability" prevented the conclusion
that the resolution was intended to waive the State's immunity from
liability.  Id. at 733; see also State v. Isbell, 94 S.W.2d 423,
424-25 (Tex. 1936); State v. Brannan, 111 S.W.2d 347, 349 (Tex.
Civ. App. 1937, writ ref'd); Brooks v. State, 68 S.W.2d 534 (Tex.
Civ. App. 1934, writ ref'd).  We conclude that Senate Concurrent
Resolution No. 69, standing alone, waives only the State's immunity
from suit (i.e., gives consent to sue the State), but does not
waive the State's immunity from liability. (1)
	The Lindseys also argue that the State's immunity from
liability may be overcome by "a legal obligation which exists under
prior law."  The requirement of "pre-existing law" comes from
section 44 of article 3 of the Texas Constitution:

The Legislature . . . shall not . . . grant, by
appropriation or otherwise, any amount of money out of
the Treasury of the State, to any individual, on a claim,
real or pretended, when the same shall not have been
provided for by pre-existing law; . . . .

Tex. Const. Ann. art. III, § 44.  The Lindseys contend that this
requirement is met in the present case through the Education Code's
imposition of specific obligations on the Texas School for the
Deaf.  We disagree.
	The Lindseys direct our attention to three cases they say
exemplify the conditions necessary to satisfy the pre-existing-law
requirement:  (1) State v. City Nat'l Bank, 603 S.W.2d 764 (Tex.
1980); (2) State v. Hale, 146 S.W.2d 731 (Tex. 1941); and
(3) Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242 (Tex. 1934).  All
are distinguishable from the present case.
	In City National Bank, the court allowed a money judgment
against the State for 13 months' occupancy of the bank's building
by a state commission after the primary term of the party's lease
had expired.  The court's decision was based, however, solely on
the fact that the bank's suit was for breach of a written contract,
i.e., the lease agreement.  603 S.W.2d at 765-66.  The State's
entry into a contract waives its immunity from liability with
regard to claims made under the contract:

It is well settled that so long as the state is engaged
in making or enforcing laws, or in the discharge of any
other governmental function, it is to be regarded as a
sovereign, and has prerogatives which do not appertain to
the individual citizen; but when it becomes . . . a party
to a contract with a citizen, the same law applies to it
as under like conditions governs the contracts of an
individual.

Fristoe v. Blum, 45 S.W. 998, 999 (Tex. 1898); see also Dillard v.
Austin Indep. School Dist., 806 S.W.2d 589, 592-93 (Tex. App. 1991, 
writ requested); Courtney v. University of Texas Sys., 806 S.W.2d
277, 281-82 (Tex. App. 1991, no writ).  The present case does not
include a contractual claim.  City National Bank is inapposite.
 Hale involved a claim for flood damage to the plaintiff's
land caused by a nearby public construction project.  The supreme
court permitted the claim on the theory that the construction
"constituted a taking or damaging of their property for public
use," compensable under article I, section 17 of the Texas
Constitution.  146 S.W.2d at 735-37.  There was no discussion of
the pre-existing-law requirement found in article III, section 44. 
	In Austin National Bank, a foreign corporation paid a tax
under duress.  Shortly thereafter, in an unrelated case, the Texas
Supreme Court declared the imposition of such a tax to be improper. 
The bank, as assignee of the corporation's right to the return of
its money, sued the State for a refund of the illegally collected
funds.  The court first explained the meaning of the "pre-existing
law" requirement contained in article III, section 44:

By its express words the constitutional provision under
consideration in no uncertain terms prohibits the
Legislature from appropriating state money to "any
individual" unless such appropriation shall have been
provided for by a "pre-existing law."  We interpret this
to mean that the Legislature cannot appropriate state
money to "any individual" unless, at the very time the
appropriation is made, there is already in force some
valid law constituting the claim the appropriation is
made to pay a legal and valid obligation of the state. 
By legal obligation is meant such an obligation as would
form the basis of a judgment against the state in a court
of competent jurisdiction in the event it should permit
itself to be sued.

71 S.W.2d at 245.  The court next held that "a common-law right is
a right under a 'pre-existing law' within the meaning of the
constitutional provision under discussion here."  Id.  Finally, the
court held that the repayment of an illegal tax constituted a
"legal obligation" of the State for purposes of article III,
section 44 of the constitution.  Accordingly, the court held that
the claim was not barred by the State's immunity from liability.
	While the supreme court's holding in Austin National Bank
elucidates the meaning of the constitutional provision in question,
it does not control the present case.  In concluding that the claim
was a pre-existing "valid obligation" on the part of the State, the
court in Austin National Bank emphasized that illegally collected
tax money "never becomes the property of the state as against the
real owner."  71 S.W.2d at 246.  Thus, the court effectively held
that tax funds illegally collected by the State are held by the
State in trust for the true owner.  In the present case, on the
other hand, the Lindseys' claim is not for money held in trust by
the State, nor is it even for a liquidated sum.  The doctrine
enunciated in Austin National Bank cannot be extended to include
such a claim.
	We conclude that the Lindseys' claim is not one "provided
for by pre-existing law" within the meaning of article III, section
44 of the Texas Constitution.  Although the relevant provisions of
the Education Code imposed certain duties on the State, they did
not expressly obligate the State to pay the Lindseys' claim for
damages.
	The judgment of the trial court is affirmed.


  
					J. Woodfin Jones, Justice
[Before Chief Justice Carroll, Justices Jones and B. A. Smith]
Affirmed
Filed:  June 19, 1991
[Publish]
1.        We note that although section 107.002 of the Civil
Practice and Remedies Code applies only to legislative
resolutions adopted on or after August 31, 1987, and so does not
apply to the Lindseys' resolution, subsection (b) of that statute
appears to be merely a codification of existing case law:  "A
resolution granting permission to sue does not waive to any
extent immunity from liability."  Tex. Civ. Prac. & Rem. Code
Ann. § 107.002(b) (Supp. 1991).
