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St. Mary's Law Journal

Renna Rhodes

Abstract

When the government causes injury through negligence or by breaching a contract, the injured party must face the obstacle of governmental immunity. The doctrine of governmental immunity can act as a total bar to recovery, especially in Texas. Over the years, governmental immunity increasingly has faced attack from courts and commentators. Some states, including Texas, have revised the common-law doctrine, allowing the government to be sued in certain situations. In Texas, principles of governmental immunity are often misconstrued. Which principles of governmental immunity apply to a particular situation in Texas depends on whether the defendant is a state entity or an official employee, and whether the wrong committed constitutes a tort or breach of contract. The general rule in Texas is that the state and its officers are immune from liability unless the state consents to be sued or otherwise waives its immunity. An exception exists when the states enters a contract: governmental immunity will not protect the state from wrongful actions in a contract situation because the state is deemed to have waived its immunity. Recently, Texas courts have created an exception to the contract exception by holding that while the state waives immunity from liability, it does not waive immunity from suit. In light of the emerging exception to the exception outlined in Fristoe v. Blum, the rule is not so clear when the state sets aside its sovereign attributes and becomes a contracting party. The Texas Supreme Court has a chance to clear up the confusion over contractual sovereign immunity in Federal Sign v. Texas Southern University. The court need not establish any new rule or develop any new law; the court must simply reaffirm what it decided 100 years ago in Fristoe: sovereign immunity does not apply when the state contracts with a private citizen.

Publisher

St. Mary's University School of Law

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