St. Mary's Law Journal


Melinda Herrera


Unless Texas expressly waives its Eleventh Amendment sovereign immunity, its state employees will not have similar legal recourse and protection as those available to private employees. As in many other states, a party may not sue the State of Texas without its consent. Thus, in the absence of constitutional or statutory provisions to the contrary, a state may claim sovereign immunity against any suit brought by a private party in both federal and state court. As a result, the Eleventh Amendment effectively precludes private individuals from suing a state in both federal and state court for violating a federal statute unless Congress abrogates state sovereign immunity. After the Supreme Court decided Seminole Tribe of Florida v. Florida, federal and state courts were left with the unreasonable burden of trying to ascertain whether state employees could sue a state for damages resulting from a violation of federal laws. The Supreme Court resolved the issue in Alden v. Maine, and now that the Eleventh Amendment affords states protection from lawsuits brought by private citizens for federal claims in state and federal court unless the state waives its sovereign immunity. As a result of Seminole Tribe and Alden, state employees are left without a forum to sue a state for liquidated damages resulting from alleged violations of the Fair Labor Standards Act (FLSA). Texas would be well-served by following Wisconsin's example and modeling its legislative effort by incorporating the FLSA into the Texas Payday Law. State employees deserve the same protections as private employees.


St. Mary's University School of Law