Governmental Immunity Under Texas Law

• Published date: 06 April 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Government Contracts, Procurement & PPP, Sovereign Immunity: Public Sector Government
• Law Firm: Freeman Law
• Author: Jason Freeman

GOVERNMENTAL IMMUNITY

Although often used interchangeably, the terms sovereign immunity and governmental immunity involve two distinct concepts. Sovereign immunity protects the State and divisions of state government (including agencies, boards, hospitals, and universities) from lawsuits for damages. Sovereign immunity embraces two distinct principles: immunity from suit and immunity from liability.

Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts. Like sovereign immunity, it also encompasses immunity from suit and from liability. Governmental immunity is an extension or application of the State's sovereign immunity, the age-old, common-law doctrine that shields the State, its agencies, and generally its officials from suit. Although Texas case law recognizes a distinction between sovereign immunity and governmental immunity, the two concepts function identically.

The Derivative Nature of Governmental Immunity

Ultimately, a political subdivision's immunity (governmental immunity) derives from and is limited by the state's sovereign immunity:

Texas is inviolably sovereign. Such sovereignty is inherent in its statehood, and generally protects the state from suits for money damages. Political subdivisions of the state'such as counties, municipalities, and school districts'share in the state's inherent immunity. But they represent no sovereignty distinct from the state and possess only such powers and privileges as have been expressly or impliedly conferred upon them. Therefore, in the realm of sovereign immunity as it applies to such political subdivisions'referred to as governmental immunity'this Court has distinguished between those acts performed as a branch of the state and those acts performed in a proprietary, non-governmental capacity. Consistent with the understanding that a municipality's immunity extends only as far as the state's but no further, we have long held that a municipality is not immune from suit for torts committed in the performance of its proprietary functions, as it is for torts committed in the performance of its governmental functions.

Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429-30 (Tex. 2016) (Wasson I) (citations, footnotes, quotation marks and modifications omitted).

Immunity From Suit and Immunity From Liability, Distinguished

Immunity from suit bars a suit against a governmental entity without the State's consent...