Because “sue and be sued” language is ambiguous at best, courts should not find that this language is a waiver of immunity. Under Texas law, governmental entities—including the state, its agencies, and political subdivisions—are entitled to sovereign immunity from both suit and liability. For sovereign immunity to be applicable to governmental entities, sovereign immunity applies unless the legislature has clearly and unambiguously waived it. Although numerous Texas appellate courts have held that “sue and be sued” language is a waiver of sovereign immunity, the Texas Supreme Court has squarely addressed the issue only once, in Missouri Pacific Railroad Co. v. Brownsville Navigation District. According to the Texas Supreme Court in Missouri Pacific, the “sue and be sued” language is a waiver of immunity from suit. Subsequent appellate cases following Missouri Pacific, however, disagree with the Texas Supreme Court’s decision. There are convincing arguments to be made that the Court in Missouri Pacific did not apply the clear and unambiguous standard that is now an unquestionable requirement of the law on sovereign immunity. Thus, the Court's ruling in Missouri Pacific is ripe for reconsideration. Until the Texas Supreme Court revisits the issue or the legislature further addresses the matter, attorneys representing governmental entities will continue to argue that sue and be sued language is not a clear and unambiguous waiver of immunity from suit. Moreover, uncertainty about the meaning and effect of the language will continue to cloud both existing and prospective contracts between governmental entities and private parties.
St. Mary's University School of Law
A. Craig Carter,
Is Sue and be Sued Language a Clear and Unambiguous Waiver of Immunity.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol35/iss2/2
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