Yesterday a Texas appeals court dismissed a lawsuit brought against Texas Tech University and several of its officers by Mike Leach, the school’s former head football coach. Leach was fired last year after he was accused of mistreating a player. Leach’s lawsuit accused the university, its president, vice-chancellor, and athletic director of numerous injuries, including breach of contract and violation of due process.
The trial court dismissed all but the breach of contract claim, citing the State of Texas’ “sovereign immunity,” which encompasses Texas Tech. The appeals court invoked sovereign immunity for all claims, including breach of contract, and ordered the entire lawsuit dismissed. Brian Quinn, chief judge of the Texas 7th Court of Appeals, authored the court’s opinion, which delved into the history of “sovereign immunity”:
Given the nature of the issues at bar, it is helpful to delve into the history underlying the doctrine of sovereign immunity. The latter found its genesis in old England. Then, as most will admit, the king (or queen as the case may be) was omnipotent. No inherent authority belonged to those over whom he lorded. Rather, any rights or privileges they enjoyed were no greater than those the monarch deigned to bestow on them. Moreover, the judiciary that he created not only recognized this relationship between the king and his people but also deduced from it that since the former was sovereign over all, the latter could not be sue him without his approval. Thus, the tenet was of neither legislative nor executive origin. Instead, judges simply declared it to be law. [In a footnote, Quinn writes, "Dare we infer that this was an early example of judicial activism?"] With the discovery and population of the New World, our forefathers were called upon to establish their own system of government. Having rebelled against the tyranny of British rule, one would think that they would instill a government of limited powers. Indeed, the constitutional passage written above purports to encapsulate that sentiment. Nonetheless, not all things British were rejected for our own courts adopted much of the common law developed overseas. And, included in that body of law was the doctrine of sovereign immunity. So, though we have no king and despite the words of article 1, §2 of our Texas Constitution, the government (e.g., State, county, and municipalities) and those working for it in their official capacities came to enjoy that created to protect monarchs so many years ago. [Citations omitted]
Some may think it ironic that sovereign immunity remains viable given the wording of our Texas Constitution. Again, it mandates that “[a]ll political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” (emphasis added). Thus, true sovereignty lies in the people of Texas, not the government they created. That the true sovereign may be subjected to suit without consent while their creation cannot seems to diminish the meaning of art. I, §2 of the Constitution. [Citations omitted]
That the State is not acting as a sovereign (but rather a private party) when withholding money due under a contract but nonetheless enjoys immunity from suit for withholding that money because it is deemed the sovereign is somewhat of a contradiction. No doubt there is a reasonable explanation for the apparent inconsistency, and the [Texas] Supreme Court is in the best position to explain it.