The Ultra Vires Exception To Sovereign Immunity In Texas

• Published date: 15 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Sovereign Immunity: Public Sector Government
• Law Firm: Freeman Law
• Author: Freeman Law

Ultra Vires Claims

In the absence of a waiver or consent, state government entities and their employees generally enjoy immunity from liability while acting within the scope of their employment. Sovereign immunity, as the doctrine is known, protects the State and divisions of state government (including agencies, boards, hospitals, and universities) from lawsuits and liability for damages. But the doctrine of sovereign immunity is subject to limits, or exceptions, when a government official or officer engages in an ultra vires act.

Under the ultra vires doctrine, sovereign immunity does not prohibit suits against a state official or officer of a state entity if the official's actions were ultra vires.1 Thus, even when a government entity's immunity has not been waived by the Legislature, a claim may proceed against a government official in his official capacity if the plaintiff successfully alleges that the official has engaged in ultra vires conduct.

Sovereign Immunity

"That the king can do no wrong is a necessary and fundamental principle of the English constitution. . . . [N]o action will lie against the sovereign (for who shall command the king?)"

- Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 [1753], Book III, Chapter XVII

Sovereign immunity implicates a court's subject-matter jurisdiction, generally barring suits against the State or its subdivisions absent a clear and unambiguous waiver of immunity by the Legislature. In certain narrow instances, however, a suit against a state official can proceed even in the absence of a waiver of immunity if the official's actions are ultra vires. Such claims fall outside of the State's umbrella of sovereign immunity.

Sovereign immunity protects the State of Texas and its agencies from suit and liability. Governmental immunity, on the other hand, provides similar protections to the State's political subdivisions.

What is an Ultra Vires Claim?

The ultra vires doctrine is a narrow exception to governmental immunity. An ultra vires claim against a government official-that is, a suit against a government official for acting outside his or her authority and seeking to require the official to comply with statutory or constitutional provisions-is not barred by immunity. Such a suit is known as an ultra vires suit.

An ultra vires claim cannot be maintained against the governmental entity directly. Rather, it is brought against the government official.

Before 2009, the Texas Supreme...