St. Mary's Law Journal


Marilyn Phelan


The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide better understanding of the doctrine’s precepts and present ways for avoiding the procedural hurdles they raise. Courts rationalize the need for sovereign immunity for reasons such as being guardians of the public or protecting the government from every citizen bearing a grudge. Yet, there are viable options to limit the harms and restrict sovereign immunity in a way that does not leave the government open to plunder or pillory. As long as the doctrine remains part of the law, litigants must be aware of the procedural hurdles for when they bring suit. Government officials are further shielded if they are the “real, substantial party in interest” when the charge is unconstitutional conduct. Even public officials who are sued in their individual capacity can still assert qualified immunity as a defense. The Texas Supreme Court could have used the recent cases to address the issues surrounding the doctrine of sovereign immunity and the procedural hurdles to suing the government. Nevertheless, the Court chose to preserve the doctrine. The question of whether a legitimate reason to perpetuate the sovereign immunity doctrine remains and whether its continuation protects governmental wrongdoing at the expense of the public.


St. Mary's University School of Law