Under Texas law, school districts are generally immune from suit and liability unless the legislature expressly waives government immunity. Generally, in the absence of an express legislative override, such as that contained in Section 271.152 of the Texas Local Government Code, school districts are governmental units that benefit government immunity lawsuits for damages.
Waiver of Immunity to Prosecute Under Section 271
Section 271.152 of the Texas Local Government Code waives the immunity of eligible local government entities from suit for breach of contract specified:
A local government entity that is authorized by statute or constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to bring an action to adjudicate on a claim for breach of contractsubject to the terms and conditions of this sub-chapter.
TEXAS. LOC. GOVERNMENT CODE ANN. § 271.152. However, this derogation is only applicable to two types of contracts:
(A) a written contract setting forth the essential terms of the agreement to supply goods or services to the local government entity that is properly performed on behalf of the local government entity; or
(B) a written contract, including a right of first refusal, for the sale or delivery of at least 1,000 acre-feet of water reclaimed by a local government entity for industrial use.
Identifier. § 271.151.
Waiver of immunity from liability by entering into a contract, generally
Generally, however, when a government entity enters into a contract with a private party, it waives immunity from liability. But this waiver, by itself, does not constitute a waiver of the immunity suit, which is separate and distinct from a disclaimer. The proposal may seem a bit confusing. But it’s well established in Texas law.
That is to say that when the State contracts, it is generally responsible for the contracts concluded for its benefit as if it were a private person. Consequently, when the State contracts with individuals, it waives immunity from liability. He agrees like any other party to the terms of the agreement. But the State does not renounce the immunity from ester simply by contracting with a private person. Legislative consent to prosecute is always required to obtain jurisdiction.
Thus, to bring an action against a government entity for breach of contract, a plaintiff must establish legislative consent to sue by bringing an action under a special statute or obtaining a legislative resolution. Otherwise, government immunity from prosecution runs counter to the substantive jurisdiction of a trial court. Section 271 is one of the most common legislative waivers of government immunity.
Immunity from prosecution and liability, distinction
Immunity from prosecution prohibits a prosecution against a government entity without the consent of the state. Even if the state recognizes its responsibility, immunity from jurisdiction prevents the maintenance of a legal action to obtain compensation, unless the state consents to it, either by a constitutional provision or by a legislative measure. The legislature, however, may consent by statute or by legislative resolution. Under Texas law, a statutory waiver of immunity must be effected by a clear statement and unambiguous language.
Immunity from liability prevents the execution of a judgment, even if the legislator has given its consent to prosecute. And under Texas law, the legislature neither creates nor admits liability by granting permission to prosecute.
However, sovereign immunity does not bar suits against a state official or an official of a state entity if the official’s actions are ultra vires.