         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00129-CV




                          Texas A & M University-Kingsville, Appellant


                                                   v.


                                    Grant M. Lawson, Appellee




        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
           NO. 99-01282, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING




                                            OPINION


                Texas A & M University-Kingsville (ATAMUK@) appeals from a judgment imposing liability

on TAMUK for breaching a settlement agreement between it and Grant M. Lawson. TAMUK argues that

the district court=s judgment should be reversed because the settlement agreement was never approved by

the requisite state officials and because the settlement agreement required TAMUK employees to provide

false information to members of the public. TAMUK also argues that the district court=s award of attorney

fees was improper. We will affirm the judgment of the district court.
                                    BACKGROUND

History of the Underlying Settlement Agreement




                                           2
                Lawson began working for Texas A & I University (now TAMUK) in 1989 as a clarinet

instructor in the music department. Lawson was fired after a dispute in September 1992. Following his

dismissal, Lawson sued TAMUK and several individuals for wrongful termination.1 TAMUK and Lawson

reached a settlement on October 14, 1994, under which TAMUK would pay Lawson $60,000 to dismiss

his suit. The agreement stated that it was Asubject to the approval of the governor and comptroller of the

State of Texas@ and that TAMUK would Ause [its] best efforts to cause the payment to be made on or

before December 14, 1994.@2 Because the state failed to make the payment in time, Lawson rescinded the

agreement.



        1
            Lawson sued TAMUK for, among other claims, a violation of the Whistleblower Act. See Act of
May 30, 1983, 68th Leg., R.S., ch. 832, '' 1-6, 1983 Tex. Gen. Laws 4751, 4751-53, repealed and
recodified by Act of April 30, 1993, 73d Leg., R.S., ch. 268, '' 1, 46, 1993 Tex. Gen. Laws 583, 609-
611, amended by Act of May 25, 1995, 74th Leg., R.S., ch. 721, '' 1-10, 1995 Tex. Gen. Laws 3812,
3812-14 (current version at Tex. Gov=t Code Ann. '' 554.001-.010 (West 1994 & Supp. 2004)). The
trial court sustained TAMUK=s plea to the jurisdiction with respect to some of Lawson=s claims, but denied
the plea with respect to Lawson=s Whistleblower Act claim and his constitutional claims for equitable relief.
        2
           TAMUK argues that two statutes required that this settlement be approved by the attorney
general, comptroller, and governor. See Act of May 27, 1993, 73d Leg., R.S., ch. 1051, art. V, ' 65(2),
1993 Tex. Gen. Laws 4518, 5364; Act of May 27, 1993, 73d Leg., R.S., ch. 1051, art. I-69, A.1.1(2),




                                                     3
1993 Tex. Gen. Laws 4518, 4599. We will discuss these statutes below.


                                                4
                On February 24, 1995, TAMUK obtained approval for the settlement and the $60,000

payment. Because Lawson had rescinded the first mediation agreement, the parties entered into a second

mediation and arrived at a Release and Settlement Agreement, dated May 16, 1995, which is the subject of

this lawsuit (the AFinal Agreement@). The Final Agreement provided that Lawson would dismiss his lawsuit

against TAMUK with prejudice if TAMUK would perform three actions. First, TAMUK would pay

$60,000 to Lawson immediately upon execution of the Final Agreement and an additional $2000 to

Lawson no later than May 18, 1995.3 Second, TAMUK would provide letters of recommendation to

Lawson that would Afactually state the accomplishments and positive aspects of Lawson=s performance.@

Finally, the Final Agreement stated that TAMUK would respond to employment inquiries as follows:


        Any official inquiry made to the university regarding Lawson=s employment shall be referred
        to the director of personnel. The director of personnel shall respond by confirming that
        Lawson was employed as an assistant professor at a salary of $31,000 a year, inclusive of
        benefits. The director of personnel shall state that he may not provide any other
        information.




        3
           The assistant attorney general who represented TAMUK during the mediation of Lawson=s
lawsuit tendered a warrant in the amount of $60,000 to Lawson=s attorney at the May 16, 1995 mediation.
 The $60,000 payment made at the May 16, 1995 mediation was actually a product of the first mediation
agreement. The warrant was dated March 7, 1995, signed by Comptroller John Sharp, and made payable
to both Lawson and his attorney. The $2000 was paid to Lawson out of TAMUK funds. Following
payment, Lawson dismissed his lawsuit against TAMUK with prejudice.




                                                    5
                  Although Lawson was employed as an instructor, the Final Agreement provided that

TAMUK would refer to him as an Aassistant professor.@ Lawson claims that, but for his termination from

TAMUK, he would have received his doctorate of music sooner, thereby making him eligible for a position

at TAMUK as an assistant professor.4 Therefore, Lawson claims that the Final Agreement Awas designed

to make Dr. Lawson >whole= and, as part of that design, it effectively promoted Dr. Lawson to Assistant

Professor.@


Breach of the Final Agreement

                  In 1998, Lawson applied for a position as clarinet instructor at Fort Hays State University

(AFHSU@) in Kansas. Lawson represented to FHSU that he had served at TAMUK as an assistant

professor. When Lawson made the list of Asemifinalists@ for the position, Dr. James Murphy, the chair of

the department of music at FHSU, called the TAMUK department of music to discuss Lawson=s

employment history. After leaving several messages with the department chair=s secretary, Dr. Murphy

eventually spoke to the department chair. According to Dr. Murphy, the department chair said he Awould

literally lose his job@ if he were to discuss Lawson=s employment with Dr. Murphy. Dr. Murphy then spoke

to the personnel director, who informed Dr. Murphy of Lawson=s salary and his prior position as

Ainstructor.@ Not knowing if the term Ainstructor@ was used generically or to refer specifically to Lawson=s

rank, Dr. Murphy asked for clarification from the personnel director, who again stated Lawson=s salary and

that he was an Ainstructor.@


        4
            Lawson in fact received his doctorate of music from Michigan State University in May 1997.


                                                      6
                Lawson did not receive the position at FHSU. He contacted Dr. Murphy, who related the

details of his conversation with TAMUK to Lawson. Lawson contacted TAMUK, and counsel for

TAMUK responded to Lawson=s inquiries and stated that TAMUK should have represented Lawson=s

rank as Aassistant professor@ instead of Ainstructor.@ Lawson subsequently filed suit against TAMUK and

several individuals for breach of the Final Agreement and for declaratory relief to prevent future violations.

During the pendency of Lawson=s lawsuit for breach of the Final Agreement, TAMUK changed the script

its personnel department would use when communicating with Lawson=s potential employers and required

its personnel department to respond: AWe are currently in litigation with Mr. Lawson. Under advice from

counsel, the request for verification must be in writing.@


Procedural History

                After Lawson brought suit for breach of the Final Agreement, TAMUK filed a plea to the

jurisdiction, asserting sovereign immunity. The district court denied TAMUK=s plea, and TAMUK brought

an interlocutory appeal. Both this Court and the supreme court affirmed the district court=s denial of

TAMUK=s plea to the jurisdiction. Texas A&M Univ.-Kingsville v. Lawson, 28 S.W.3d 211, 216 (Tex.

App.CAustin 2000), aff=d, 87 S.W.3d 518 (Tex. 2002).

                Lawson=s case then proceeded to trial in November 2002, over four years after the alleged

breach of the Final Agreement. After a jury determined that TAMUK had breached the Final Agreement,

the district court entered judgment on the verdict and awarded Lawson actual damages and attorney=s fees

as found by the jury. The trial court, however, refused to grant the part of Lawson=s declaratory relief that




                                                      7
requested that the district court declare that the terms of the Final Agreement prohibited TAMUK from

telling prospective employers that TAMUK was involved in litigation with Lawson.

                 TAMUK now appeals the district court=s judgment, arguing that (1) it cannot be bound by

an agreement that was not approved by the requisite state officials, and it should have been allowed to

present evidence on this issue in the trial court; (2) it cannot be held liable for violating the contract clause

that requires TAMUK to state Lawson=s position as Aassistant professor@ because this clause is void as

against public policy and as violative of statutes regarding public information and open government; and (3)

Lawson is not entitled to an award of attorney=s fees.

                 In one cross-point, Lawson argues that the district court erred in denying his request to

declare that the terms of the Final Agreement prohibit TAMUK from telling prospective employers that

TAMUK is involved in litigation with Lawson.


                                               DISCUSSION

Approval of the Final Agreement

                 TAMUK argues that its failure to obtain the approval of the governor, comptroller, and

attorney general of Texas to the terms of the Final Agreement renders the agreement unenforceable.5

TAMUK also argues the district court erred in ruling as a matter of law that all conditions precedent had

been satisfied upon payment of the $60,000 warrant.


        5
          Although the parties had been litigating the alleged breach of the Final Agreement for
approximately four years, TAMUK first alleged the Final Agreement was unenforceable in a supplemental
motion for summary judgment filed approximately one week before trial.


                                                       8
                As support for its argument, TAMUK cites two appropriations statutes, the first of which

provides:


        Payment of all judgments and settlements prosecuted by or defended by the Attorney
        General is subject to approval of the Attorney General as to form, content, and amount,
        and certification by the Attorney General that payment of such judgment or settlement is a
        legally enforceable obligation of the State of Texas.


Act of May 27, 1993, 73d Leg., R.S., ch. 1051, art. V, ' 65(2), 1993 Tex. Gen. Laws 4518, 5364. The

second statute provides:


        Payments for settlements and judgments for claims against state agencies that are payable
        under Chapters 101 and 104, Texas Civil Practices and Remedies Code Annotated, as
        determined by the Attorney General . . . are to be paid out by the Comptroller on vouchers
        drawn by the Attorney General and approved by the Governor.


Id., art. I-69, A.1.1(2), 1993 Tex. Gen. Laws 4518, 4599. TAMUK also cites the first mediation

agreement, which stated that Athis mediation agreement is subject to the approval of the governor and

comptroller of the State of Texas,@ and argues that this language was Ainexplicably@ changed in the Final

Agreement to read Athe payment of $60,000.00 to Plaintiff is subject to approval by the Office of the

Governor and State Comptroller to the terms of this agreement.@6 (Emphasis added.)

                We reject TAMUK=s arguments. First, nothing in the appropriations statutes TAMUK

cites required the governor, comptroller, or attorney general to approve the terms of the Final Agreement.


        6
         Although the Final Agreement provided that Lawson was to be paid $62,000, the governor and
comptroller were only required to approve the $60,000 payment.


                                                    9
Both appropriations statutes merely required approval of payment, and it is undisputed that the $60,000

warrant was approved by the requisite state officials. Finding nothing in the appropriations statutes that

requires the governor, comptroller, or attorney general to approve the terms of the Final Agreement, we

reject TAMUK=s contentions that the Final Agreement is unenforceable due to a failure to comply with the

appropriations statutes.

                TAMUK=s argument that the first mediation agreement contained a condition precedent that

the agreement be approved by the governor and comptroller is also unconvincing. The Final Agreement

contained a merger clause that stated: AThis compromise settlement agreement contains the entire

agreement between the parties and supersedes any and all prior agreements of understandings, statements,

promises or inducements contrary to the terms of this compromise settlement agreement. This compromise

settlement agreement cannot be changed or terminated orally.@ In contract cases, the Amerger doctrine,@ an

analogue of the parol-evidence rule, refers to the absorption of one contract into another subsequent

contract and is largely a matter of intention of the parties. Fish v. Tandy Corp., 948 S.W.2d 886, 898

(Tex. App.CFort Worth 1997, pet. denied); see Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d

891, 898 (Tex. App.CAustin 2001, no pet.). Merger occurs when the same parties to an earlier agreement

later enter into a written integrated agreement covering the same subject matter. Fish, 948 S.W.2d at 898.

Absent pleading and proof of ambiguity, fraud, or accident, a written instrument presumes that all the

parties= earlier agreements relating to the transaction have merged into the written instrument. Id.

                We hold that the merger clause in the Final Agreement is valid and that the Final Agreement

represents the entire agreement between the parties. TAMUK=s argument that the language of the first


                                                            10
mediation agreement was Ainexplicably@ changed in the Final Agreement is not persuasive. The assistant

attorney general representing TAMUK, who recommended settlement to the Office of the Attorney General

and represented TAMUK during the mediation of Lawson=s lawsuit, signed the Final Agreement on behalf

of TAMUK. Our review of the record reveals nothing to indicate that TAMUK=s counsel, who was

intimately familiar with Lawson=s initial lawsuit and the two mediation agreements, was unaware of the

content of the Final Agreement that he signed. It is clear that the Final Agreement superseded the first

mediation agreement and extinguished the requirement that the entire agreement be approved by the

governor and comptroller. The Final Agreement provided that Athe payment of $60,000.00 to Plaintiff is

subject to approval,@ and this condition was satisfied.

                  Finally, TAMUK argues that the district court erred in ruling as a matter of law, during a

hearing on the parties= motions in limine, that all conditions precedent had been satisfied and that payment of

the $60,000 warrant was sufficient evidence of approval by the governor and comptroller. TAMUK has

failed to show what evidence, if any, was not before the district court when it ruled on Lawson=s motions in

limine. Moreover, the only two cases TAMUK cites on appeal in support of its position are easily

distinguishable.7 Finding nothing in the record or in Texas case law to support TAMUK=s position, we

overrule its first issue.


         7
           TAMUK cites Fort Worth Cavalry Club, Inc. v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935),
for the proposition that Athe powers and duties of public officers are defined and limited by the law@ and that
Apublic officers may make only such contracts for the government they represent as they are authorized by
law to make.@ TAMUK also cites State v. Steck Co., 236 S.W.2d 866, 869 (Tex. Civ. App.CAustin
1951, writ ref=d), for the proposition that Athe officers of the State [can] exercise only those powers
conferred on them by the law of the State@ and that when this tenet is violated, Aa legal obligation against the
State [is] not created by the unauthorized contract.@ However, TAMUK has failed to show any statutory

                                                      11
or constitutional violation. The appropriations statutes required approval of payment, and the $60,000
payment was approved in compliance with these statutes. Moreover, these cases do not support
TAMUK=s contention that the district court erred in either the manner or substance of its ruling.


                                                 12
Validity of AAssistant Professor@ Clause

                 TAMUK next argues that it should not be required to comply with the Final Agreement,

into which it voluntarily entered, because the Final Agreement required TAMUK to represent Lawson=s

position as Aassistant professor@ when his actual position was only that of an Ainstructor.@ TAMUK argues

that because complying with the Final Agreement would require TAMUK to lie about Lawson=s

employment, the Final Agreement is therefore void as illegal8 and as against public policy.

                 We disagree. A court can declare a contract void as illegal or as against public policy and

refuse to enforce it. Williams v. Patton, 821 S.W.2d 141, 147-48 (Tex. 1991) (Doggett, J., concurring)

(public policy); Lewis v. Davis, 199 S.W.2d 146, 148-49 (Tex. 1947) (illegality); South Tex. Coll. of

Law v. Texas Higher Educ. Coordinating Bd., 40 S.W.3d 130, 135 (Tex. App.CAustin 2000, pet.

denied) (public policy). However, a contract Athat could have been performed in a legal manner will not be

declared void because it may have been performed in an illegal manner,@ Franklin v. Jackson, 847


        8
            TAMUK argues that stating Lawson=s position as Aassistant professor@ would violate sections
552.001(a) and 552.022(a)(2) of the Texas Government Code. See Tex. Gov=t Code Ann. ' 552.001(a)
(West 1994) (A[I]t is the policy of this state that each person is entitled, unless otherwise expressly provided
by law, at all times to complete information about the affairs of government and the official acts of public
officials and employees.@); id. ' 552.022(a)(2) (West Supp. 2004) (stating that Athe name, sex, ethnicity,
salary, title, and dates of employment of each employee and officer of a governmental body@ are public
information unless expressly confidential under other law).




                                                      13
S.W.2d 306, 310 (Tex. App.CEl Paso 1992, writ denied), and in examining an agreement to determine if it

is contrary to public policy, the court must look for a tendency to be injurious to the public good. Sacks v.

Dallas Gold & Silver Exch., Inc., 720 S.W.2d 177, 180 (Tex. App.CDallas 1986, no writ).

                 Here, TAMUK has failed to show how referring to Lawson as an Aassistant professor@ isin

any way Ainjurious to the public good,@ especially in light of Lawson=s argument that the Final Agreement

Awas designed to make Dr. Lawson >whole= and, as part of that design, it effectively promoted Dr. Lawson

to Assistant Professor.@9 Furthermore, TAMUK could have complied with the terms of the contract and

avoided any public policy or illegality concerns simply by retroactively promoting Lawson. Because the

Final Agreement could have been performed in a legal manner by retroactively promoting Lawson, and

because TAMUK has failed to show that referring to Lawson as an Aassistant professor@ is injurious to the

public good, we overrule TAMUK=s second issue. See Franklin, 847 S.W.2d at 310 (illegality); Sacks,

720 S.W.2d at 180 (public policy).


Attorney=s Fees

                 In its third issue, TAMUK argues that there is no statutory basis to support the district

court=s award of attorney=s fees. The district court=s final judgment, after detailing Lawson=s attorney=s fees

and prejudgment interest, states:




        9
           Lawson=s employment contract with TAMUK indicated that he would receive a promotion to
assistant professor if he received his doctorate of music prior to the next contract year. According to
Lawson, the completion of his doctorate was delayed as a result of his termination.


                                                     14
        Plaintiff requested attorneys= fees based on Texas Civil Practice & Remedies Code,
        Chapters 37 and Chapter 38. Plaintiff offered evidence at trial for preparation and trial
        proving reasonable and necessary attorneys= fees. The Court orders Defendant to Pay
        Plaintiff the attorneys= fees as specified above.

                First, regarding Lawson=s breach-of-contract claim, TAMUK argues that because it is not a

Acorporation@ or Aindividual,@ the Texas Civil Practice and Remedies Code does not support the district

court=s award of attorney=s fees. See Tex. Civ. Prac. & Rem. Code Ann. ' 38.001 (West 1997). We

agree and hold that section 38.001 of the Texas Civil Practice and Remedies Code does not support the

district court=s award of attorney=s fees. See Base-Seal, Inc. v. Jefferson County, 901 S.W.2d 783, 786-

87 (Tex. App.CBeaumont 1995, writ denied); State v. Bodisch, 775 S.W.2d 73, 76 (Tex. App.CAustin

1989, writ denied).

                Next, TAMUK addresses Lawson=s request for declaratory relief under chapter 37 of the

Texas Civil Practices and Remedies Code and points to a paragraph in Lawson=s proposed final judgment

that was redacted by the district court:


        Pursuant to Chapter 37 of the Texas Civil Practice & Remedies Code, the Court declares
        that the terms of the agreement on which Plaintiff has sued prohibits Defendant from telling
        prospective employers that Defendant is involved in litigation with Plaintiff.


TAMUK claims that Abecause [Lawson=s] claim for declaratory relief was denied,@ the declaratory

judgments act does not support the award of attorney=s fees. See Tex. Civ. Prac. & Rem. Code Ann. '

37.009 (West 1997) (AIn any proceeding under this chapter, the court may award costs and reasonable and

necessary attorney=s fees as are equitable and just.@).




                                                    15
                As part of declaratory relief, a trial court has discretion in awarding attorney=s fees Aas are

equitable and just.@ FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 888 (Tex. 2000). The

award of attorney=s fees is not dependent on a finding that the party Asubstantially prevailed,@ Barshop v.

Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 638 (Tex. 1996); West

Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 270 (Tex. App.CAustin 2002, no pet.), and a trial

court may award just and equitable attorney=s fees to a non-prevailing party. State Farm Lloyds v.

Borum, 53 S.W.3d 877, 894 (Tex. App.CDallas 2001, pet. denied); Brush v. Reata Oil & Gas Corp.,

984 S.W.2d 720, 729 (Tex. App.CWaco 1998, pet. denied). In reviewing the trial court=s award of fees

to Lawson, we must determine whether TAMUK has shown that the trial court abused its discretion by

awarding attorney=s fees. Borum, 53 S.W.3d at 894 (citing Bocquet v. Herring, 972 S.W.2d 20, 21

(Tex. 1998)).

                We disagree that redaction of Lawson=s request for prospective relief prevents an award of

attorney=s fees under section 37.009 of the declaratory judgments act. Lawson=s request for declaratory

relief included continued enforcement of the Final Agreement, which TAMUK had breached. Although a

breach-of-contract cause of action can provide actual damages, only a declaratory-judgment cause of

action can prospectively enforce the breached agreement. Here, the district court=s judgment provides this

relief, but denies Lawson=s request to clarify the Final Agreement to prevent TAMUK from informing

prospective employers that TAMUK and Lawson were in litigation. The fact that the district court refused

this discrete portion of Lawson=s request for declaratory relief does not deprive the district court of its




                                                     16
discretion to award attorney=s fees under the other prospective declaratory relief requested. We therefore

overrule TAMUK=s final issue.10


                                            CONCLUSION

                 Because we overrule all of TAMUK=s issues, we affirm the judgment of the district court.




                                                Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: January 29, 2004




        10
             Because we overrule TAMUK=s final issue, we need not reach Lawson=s cross-point.



                                                   17
