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Evolution of Section 101.106 of the Tort Claims Act - Election of Remedies

WAIVER OF SOVEREIGN / GOVERNMENTAL IMMUNITY BY CONDUCT
A few Texas cases have indicated that governmental or sovereign immunity can be waived by conduct
in certain situations. Fed. Sign. v. Tex. S. Univ., 951 S.W.2d 401, 408 n.1 (Tex. 1997) (stating in a
footnote that there may be circumstances when the State waives immunity by conduct other than
simply executing a contract). The Court has not found any Texas Supreme Court cases applying the
so-called "waiver-by-conduct" exception to sovereign and governmental immunity, and it is not clear
that such an exception exists under Texas law. See Tex. Natural Res. Conservation Comm'n v. IT-
Davy, 74 S.W.3d 849, 856-58 (rejecting party's assertion that the court should apply a waiver-by-
conduct exception in a breach of contract suit against the State). In addition, while a few lower courts
have applied a "waiver-by-conduct" exception, these courts have required egregious conduct on the
part of the governmental entity to apply the exception. See
Tex. Southern Univ. v. State St. Bank &
Trust, 212 S.W.3d 893 (Tex. App.—Houston[1st Dist.] 2007, pet den.) (noting that the Texas Supreme
Court has never addressed the waiver-by-conduct exception in a case with such "extraordinary factual
circumstances," and applying waiver-by-conduct exception where company provided $13 million in
equipment and services, but school refused to pay, and facts showed that governmental officials lured
the company into provided services with false promises that the documents at issue constituted a
valid and enforceable contract); see also La Joya Indep. Sch. Dist., 2009 WL 1089459 at *4 (finding
that the facts of the case did not warrant application of the waiver-by-conduct exception where
assistant superintendent of school district approached company about work and provided a letter
authorizing the work, and the company completed the work).

A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) ("[The plaintiff] advances a waiver-by-
conduct argument . . . but we have consistently rejected that position and held that `the State does
not waive its immunity from a breach-of-contract action by accepting the benefits of a contract.'")
(quoting Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)).
City of Alton v. Sharyland Water Supply Corp., No. 13-06-038-CV, 2009 Tex. App. LEXIS 749, at *15
(Tex. App.-Corpus Christi Feb. 5, 2009, pet. filed) (op. on reh'g) (declining to create a waiver-by-
conduct exception); Patterson v.Gulf Marine Inst. of Tech., No. 13-06-067, 2008 Tex. App. LEXIS
1462, at *25-26 (Tex. App.-Corpus Christi Feb. 28, 2008, pet. denied) (mem. op.).

HOUSTON CASES

MBP Corp. v. Board of Trustees of the Galveston Wharves (Tex.App.- Houston [14th Dist.] Sep. 17,
2009)(Sullivan) (
takings claim rejected, governmental immunity, waiver-by-conduct exception
rejected)  
AFFIRMED: Opinion by
Justice Sullivan    
Before Justices Hudson, Guzman and Sullivan  
14-07-01064-CV  MBP Corp. v. Board of Trustee of the Galveston Wharves; and The Galveston Port
Facilities Corporation   Appeal from 212th District Court of Galveston County
Trial Court Judge:
Susan Elizabeth Criss      


TSU v. State Street Bank and Trust, No. 01-06-00497-CV (Tex.App.- Houston [1st Dist.] Jan. 11, 2007)
(Hanks)(substitute opinion)(
governmental immunity waived by conduct, waiver of sovereign immunity)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC
FOR FURTHER PROCEEDINGS: Opinion by Justice Hanks
(Before Justices Nuchia, Keyes and Hanks)
01-06-00497-CV  Texas Southern University v. State Street Bank and Trust Company, CMS Viron
Corporation
Appeal from 80th District Court of Harris County (
Judge Kent C. Sullivan)
Justice
Keys wrote separate opinion in TSU v. State Street Bank and Trust, No. 01-06-00497-CV  
(Tex.App.- Houston [1st Dist.] Jan. 11, 2007)(separate opinion by Keyes)(substitute opinion) (takings
claim)


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