

 
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.


