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House Interim Committee on Civil Practices

Study the use of the sovereign immunity statute by state agencies in contract disputes.

Sovereign immunity is based on the common law rule that a king or sovereign cannot be sued without that sovereign's consent. This doctrine protects the state, its employees, and officers, from most lawsuits. To seek legal redress, a party must ask the state to agree to the action and waive sovereign immunity.

The Texas Legislative Council, at the committee's request, surveyed the laws of the other 49 states concerning the application of this doctrine. While most states retain the doctrine, immunity may be waived in respect to certain claims. Most states have waived the doctrine as to contract disputes. The survey also found that most states did not have an arbitration process for claims against the state, although in many states the arbitration process for civil actions would also cover suits against that state.

The committee made no recommendations, but listed various options:

  • retain the current system;

  • waive the doctrine for contract claims, the Texas Tort Claims Act remaining in place;

  • create some sort of limited waiver, limiting the size of claims and barring recovery for attorney's fees, consequential damages, or personal injury;

  • adopt an alternative dispute resolution for all state agencies;

  • have contract claims heard by the State Office of Administrative Hearings;

  • create a special claims court or claims review board to hear tort or contract disputes; or

  • prohibit the attachment of a claimant's lien to state property.

    Study methods that could be used to review resolutions granting permission to sue the state.

    Under the doctrine of sovereign immunity, a party seeking legal redress against the state must ask the state to waive the doctrine. One way Texas can grant a waiver is by the legislature passing a special law or concurrent resolution permitting a specific entity to sue or collect a judgment. During the 74th session, there were 28 resolutions seeking permission to sue the state, six of which passed and were signed by the governor. The complexity of many claims may make it difficult for the legislature to examine adequately the merits of a claim during the 140-day session.

    The committee made no recommendations, but offered various options:

  • require all disputes with the state to go through some sort of alternative dispute resolution, such as mediation, before permission to sue is granted;

  • require such disputes to go through either binding or non-binding arbitration;

  • foster "partnering" between the contracting parties to create a working partnership based on trust, cooperation, and teamwork; or

  • use existing state agencies to conduct hearings on claims and make recommendations to the legislature as to whether to grant or deny permission to sue.

    Study the rulemaking authority of the Supreme Court in civil court proceedings.

    The Texas Supreme Court's rulemaking authority is set out under Article 5, Section 31, of the Texas Constitution and Section 22.004 of the Texas Government Code. The legislature remains the ultimate authority of the court's power to make rules and set court procedures.