*1 Poe, supra, at 194. remedy. appeal-

Although provides Article 64.05 for 64.04,4 under Articles 64.03 or

ing finding provisions appealing for

there are appoint- indigence or

finding regarding 64.01(c). under Art. Since

ment of counsel provision appeal of the

there is no for fail- indigence

court’s determination of counsel, appoint we conclude that

ure to remedy at law. adequate

relator has no

Relator therefore has also satisfied for mandamus relief. requirement

second conditionally grant we re-

Accordingly, for writ of mandamus petition

lator’s respondent to determine whether

direct so, appoint if coun- indigent,

relator is custom, is our we

sel for relator. As of the writ to afford re-

withhold issuance

spondent opportunity to make issuance

unnecessary. J., participate. did not

WOMACK Paso, Ap- Skipworth, El for

Robert A. pellants. Green, Mounce, Hughes, Steven L. DEVELOPMENT,

CATALINA Galatzan, Myers, Safi & INC. pellee. Appellants, LARSEN, BARAJAS, C.J., Before McCLURE, JJ. PASO, EL COUNTY OF Texas, Appellee. OPINION BARAJAS, Chief Justice. appeal This is an Court of in a breach of contract El Paso. stated, affirm. case. For the reasons 11, 2002. Jan. THE OF EVIDENCE1 I. SUMMARY 21, 1992, the El Paso Coun- approved a trade Court ty Commissioners’ finding a direct appeal of the finding tal appeal of a under Article 64.03 4. "An appeals.” criminal appeal to the court of except appeals, that if or 64.04 is to a court of capi- person in a convicted was convicted reported Many these facts were anoth- was on when this case *2 of real estate. In exchange for 464.4 acres submitted a bid of (“the by Appellee, County $2,554,000 owned El Paso purchase Proper- for the of the County”), Survey, Rand the W.J. ty in money the form of an earnest con- County was to receive from the General money tract and an earnest check for (“GLO”) Land Office 381.90 acres in Sec- $5,000. 16, 3, Township T P Block 79 of the & 12, 1994, majority of the 1992, 9, Survey. Railroad On December accept Commissioners’ Court voted to the Commissioners’ Court authorized the pellants’ purchase Property. bid to the County Judge sign warranty to deed Thereafter, Appellants’ money earnest GLO, conveying the 464.4 acres to the deposited. deposit- check then Collins in turn conveyed which the 381.90 acres of $2,555,961.72 Lawyers El ed with Title of (“the the T P property Proper- & Railroad placed Paso. The Commissioners’ Court ty”) County. County the Judge authorization for the 27, 1993, January On the Commission- sign warranty conveying deed passed provided ers’ Court a motion which Property agenda to Collins on the for the GLO, Property acquired that the 30, 7, 14, November December December “County Fairgrounds described as the December December 16,” Project property Mixed Use Sec. 30, 1994, meetings. On November the mo- subject

would be to sale sealed bids. sign for one the deed was tabled 17, 1993, March On the Commissioners’ week. December the motion On passed a resolution which required sign the deed failed three votes to two County to either obtain the State’s 14, 1994, and was tabled. On December appraisal Property, on the or if the State’s then-County Judge the Commissioners and obtained, appraisal could not be have an unanimously Alicia Chacon voted to table appraisal performed by Scott Williams signing the issue of the deed for six weeks. County Burns & Co. The obtained the appraisal Property, State’s of the 14,1994, County On December Assistant 14,- $2,554,000 valued the land at as of Attorney Shapleigh Lee sent Collins a affidavit, warranty deed and which were to September September On 1993 and be used to the transaction. close Collins 26, 1993, County’s purchasing agent approved then Shapleigh the documents. placed an advertisement for sealed bids placed approval signing of the the El Paso Times. The advertisement deed agenda. on the Commissioners’ Court described the as “Section 20, 1994, County Judge- On December Loop El 375 land for Paso” and Mattox, Roge- Elect Chuck Commissioner in part: stated Sanchez, lio and Commissioner Charles

Said contract shall be let to the lowest temporary requesting Hooten filed suit bidder, responsible [sic] and the Com- order, restraining temporary injunction, missioners’ Court reserves the right permanent injunction, seeking each reject any and all bids and waive techni- prevent ap- from Commissioners’ Court calities. the deed to proving signing the sale and 26, 1994, September temporary restraining A order On about Collins. lants, Inc. and was issued the 34th District Court on Catalina agreed stipulation majority of these er issue. See Collins v. on the facts. denied). parties later entered into an does not waive 20,1994. and services The court then issued December 4,1995. Sign, 951 S.W.2d injunction January suit. Federal temporary of whether State’s question filed suit *3 immunity its may waive conduct specific per- of contract and for for breach at 408 n. open. left See id. expressly was never because the was formance Little-Tex, Supreme Court stated In 1. or Col- conveyed to Catalina suggested DalMac’s Little-Tex and Number Court at Law lins. only by first be reached outcome could County’s motion for granted the Seven excep- waiver-by-conduct a concluding that on the issue of sover- where- sovereign immunity existed immunity. This follows. eign first the State without by party could sue II. DISCUSSION Chap- consent under obtaining legislative Practice and Remedies 107 of the Civil ter of attack the sum- Little- other statute. See Code or some Specifically, Appellants mary judgment. 594-95; Tex, generally at see 39 S.W.3d legally binding argue that there was § & 107.002 Ann. Tex. Civ. PRAC. Rem.Code between themselves and contract formed 1997). (Vernon Furthermore, the court County waived and that the consistently defers to it noted par- immunity by accepting from suit immunity sovereign Legislature waive tially performing on the contract. decision, Sign the Federal and that after by that there no waiver argues was dispute-resolu- enacted a Legislature it to sover- conduct and that was entitled certain breach- procedure to resolve eign immunity from suit. against the State.3 See of-contract cases Supreme In a consolidated 595, 600; Little-Tex, see also 39 at S.W.3d recently that the State Court of Texas held 2260.001-2260.108 Ann. Code Gov’t may not waive its 2000). (Vernon Thus, held that the court conduct. See General Services immunity from not waive its the State does v. Little-Tex Insulation 39 Comm’n by accepting action a breach-of-contract (Tex.2001).2 591, 598 Both Little- S.W.3d absent of a contract and that the benefits argued that once the Tex and DalMac sue, may not party statutory consent a con State has benefits under pursue a claim breach-of-contract tract, it would be unfair to allow the State Chapter participating without State evoking to shield itself from suit sover process. See Little- 2260’s administrative immunity. They id. at re eign See Tex, 39 S.W.3d language lied on a footnote opinion Sign Federal v. Tex concurring of Supreme refused Because the Univ., 401, 408 n. as Southern S.W.2d doc- adopt waiver-by-conduct judicially (Tex.1997) posi support this has consis- this Court trine and because tion. of tently held that the waiver addressed to the immunity is a matter Supreme Court Sign, In Federal must Legislature and the goods Legislature contracting that the State’s held expressly in the defi- "county” is excluded University 3. A A M v. DalMac Construc- 2. Texas & government” Texas the second case. See also a "unit of state tion Co. is nition of Aer-Aerotron, Inc., 39 Dep't Transp. v. See Tex Gov’t Code Ann. Chapter cases, 2001). (Tex. 2000). It is these 2260.001(4) (Vernon reversals, upon prior to their lants relied. Nevertheless, sovereign immunity by waive clear exemption cess. this unambiguous language, Appel we overrule clearly not intended as a waiver of sover- lants’ issue and affirm the judgment of the eign immunity for counties and other ex- See, trial court. e.g., Dept. Texas Hu empted units of government, as the Sakil, man Services v. 25 S.W.3d 23 chapter specifically chapter states “this (Tex.App.-El pet.); Carrillo does not waive to suit Ctr., v. Texas Tech Univ. Health Sciences liability.” Gov’t Code Ann. (Tex.App.-El 960 S.W.2d (Vernon 2000). § 2260.006 pet.); Dep’t Texas Health v. adding byzantine Rather than Ruiz, *4 preserves construct which the fiction that denied); Indep. Canutillo can I wrong, do would Olivares, Sch. Dist. v. hold with Enoch simply Justice a con- writ). (Tex.App.-El Paso tracting party is hable breach of issue, Having Appellants’ overruled contract. If contracting party is the affirm the judgment of the trial court. thereof, any including subdivision itself, of El the contract

LARSEN, J., concurring. together legislation with the that autho- LARSEN, Justice, concurring. it, any rizes should be deemed a waiver of sovereign immunity claims. upon majority Based holding Gen eral Services v. Comm’n Little-Tex Insu reasons, I judg- For these concur in the (Tex.2001), lation I ment. respectfully concur in I the decision here. however, today, express my

write agree

ment reasoning with the found in Justice

Enoch’s dissent in that case. Id. at 602- (Enoch, J., dissenting). approach His only

outlines the rational ques one to the and the State’s ability agree to contract. I that a contract UNIVERSITY, TEXAS A & M State, which is not enforceable Appellant, even where the State has bargain, simply benefits of its not a

contract at all. Id. at 602. BISHOP, Appellee. Paul A. I majority’s reasoning also note that the upon in Little-Tex is the availability based process of an administrative under (Vernon 2000). (14th Dist.). Houston Gov’t Code Ann. Counties, including Defendant/Appellee El Aug. exempted are County, specifically process

from the administrative outlined Overruling Rehearing Order 2260.001(4) there. April Gov’t Code Ann. (Vernon 2000). Appellant This leaves Rehearing Overruled unhappy position: by sovereign barred pursuing his breach of con- claim, yet specifically tract excluded from pro- legislatively-designed remedial