On October 7, 2010, oral argument was held in Coach Leach’s lawsuit in which he alleges he was wrongfully terminated by Texas Tech University (“Tech”).  The central issue before the Court is whether Tech is entitled to sovereign immunity.  In Texas, the concept of sovereign immunity embraces two principles: 1) immunity from suit and 2) immunity from liability.  Immunity from suit bars an action against the state unless the state expressly consents to the suit (i.e., it is a jurisdictional bar).  Immunity from liability, on the other hand, protects the state from judgment even if the legislature has expressly consented to the suit.

In matters relating to contracts entered into by the state (Tech) and a private citizen (Coach Leach), the state waives immunity from liability.  However, as pointed out in the seminal case Federal Sign v. Texas Southern University, merely contracting with a private citizen does not waive immunity from suit.  Therefore, the focus of contract litigation is whether or not the state has waived immunity from suit, either by statute, resolution, or conduct.  In this matter, Coach Leach has vigorously argued that Tech waived immunity from suit by conduct.  According to Coach Leach’s pleadings, Tech committed the following acts and thereby waived immunity: 1) Tech fraudulently represented it would honor the agreement between the parties; 2) Tech falsely accused Coach Leach of violations of his coaching agreement without adequate investigation only days before a $800,000.00 payment was due to him; 3) Tech made public statements accusing Coach Leach of mistreating a player; and 4) Tech failed to abide by the notice and cure provisions in Coach Leach’s contracting contract.

Texas has few reported decisions where courts have upheld waiver arguments in favor of private citizens.  Indeed, in General Services Commission v. Little-Tex Insulation Company, the Texas Supreme Court held that the waiver-by-conduct exception to sovereign immunity could not be judicially adopted in light of the existence of Chapter 107 of the Texas Civil Practice and Remedies Code and Chapter 2260 of the Texas Government Code.  Additionally, the court indicated that compliance with the notice and claim procedures of Chapter 2260 of the Texas Government Code (i.e., administrative proceedings) are a mandatory prerequisite before a person can petition to sue the state.  However, in Texas Natural Resource Conservation Commission v. IT-Davy, the Texas Supreme Court provides that a waiver-by-conduct theory has potential validity.

This area of Texas law is less than clear and provides for confusion since the adoption of Chapter 2260 of the Texas Government Code.  Chapter 2260 of the Texas Government Code provides that the administrative procedures are exclusive and a required prerequisite to bring suit in accordance with Chapter 107 of the Texas Civil Practice and Remedies Code.  Although Chapter 2260 of the Texas Government Code provides for an administrative outlet for plaintiffs and Chapter 107 of the Texas Civil Practice and Remedies Code provides a means by which the state can waive immunity, oddly the statute maintains that the provisions of Chapter 2260 of the Texas Government Code and Chapter 107 of the Texas Civil Practice and Remedies Code do not divest the legislature of the authority to grant permission to sue a unit of the state government (i.e., Tech) and does not waive immunity.

As a result of the foregoing, it appears this case is on the fast track to the Texas Supreme Court regardless of the victor at the Court of Appeals level.  This matter is only beginning.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.