Leach v. TEXAS TECH UNIVERSITY
2011 Tex. App. LEXIS 445
| Tex. App. | 2011Background
- Leach, a former NCAA Division I football coach, sued Texas Tech University (the University) and several university officials for breach of contract, constitutional claims, and whistleblower claims, asserting sovereign immunity was waived by conduct and seeking declaratory and equitable relief as well as damages.
- The trial court dismissed all but a breach-of-contract claim; it refused to dismiss the contract claim on the theory of waiver-by-conduct.
- The University argued sovereign immunity barred all claims except where waived by statute or legislature, and it moved to dismiss on jurisdictional grounds.
- Leach claimed the University waived immunity by its operating policies and by conduct, and pursued whistleblower and due-process theories.
- The Texas Court of Appeals concluded that (1) waiver-by-conduct for contract claims is not established; (2) whistleblower claim failed for lack of statutory reporting under § 554.002; (3) takings claim failed; (4) due-process declaratory relief could proceed but monetary relief could not; and (5) dismissal of certain officials in their official capacities was improper for lack of interlocutory appeal, with the breach-of-contract claim ultimately dismissed for lack of legislative waiver.
- The court ultimately reversed in part, dismissed the contract claim for lack of legislative waiver, and affirmed other aspects of the trial court’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the University waived sovereign immunity by conduct | Leach asserts waiver via conduct (statutorily permitted), conduct through policy. | University argues only legislature may waive immunity; conduct does not suffice. | Waiver by conduct not established for breach of contract; immunity not waived. |
| Whether Leach's whistleblower claim survives immunity | Whistleblower Act permits suit; Leach pleaded good faith report. | Filing suit is not a 'report' to an appropriate authority; exhaustion required. | Whistleblower claim barred; petition failed to show proper reporting or jurisdiction. |
| Whether the takings claim is viable under Little-Tex | Withholding contract consideration constitutes a taking. | Contract dispute not a taking; Little-Tex limits takings to eminent-domain style seizures. | Takings claim rejected; not a taking under art. I, § 17. |
| Whether Leach's due-process claims can proceed despite immunity | Due-process violations support declaratory/equitable relief. | Sovereign immunity bars monetary claims; declaratory relief allowable in some contexts. | Court can consider declaratory relief for due-process violations; monetary relief barred. |
| Whether official-capacity claims against Bailey, Myers, and Bingham survive | Electing to sue the University should not bar claims against individuals. | § 101.106 requires irrevocable election and precludes claims against individuals. | No jurisdiction to resolve this; issue dismissed for lack of final appealable order; underlying contract claim remains. |
Key Cases Cited
- Federal Sign v. Texas S. Univ., 951 S.W.2d 401 (Tex. 1997) (waiver may arise by conduct but not always; contract waivers require legislature)
- General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) (only route to breach-of-contract claims against the State is through Legislature)
- Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) (limits waiver by conduct for contract claims; legislature controls waiver)
- City of Elsa v. M.A.L., 226 S.W.3d 390 (Tex. 2007) (declaratory relief can address constitutional violations; immunity not per se bar)
- City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (immunity protects from monetary relief; need for clear waiver)