Sovereign immunity (also known as governmental immunity) in American law was derived from the British common law doctrine that the King could do no wrong—and thus could not be sued. Sovereign immunity varies from state to state, but typically applies to state governments as well as the federal government.
But federal and state governments (generally the U.S. Congress and state legislatures) have the ability to waive their sovereign immunity. Waivers of sovereign immunity are usually included in state and federal statutes, and interpreted and applied by state and federal courts in court opinions.
For example, sovereign immunity protects the state and its various provisions of state government—including agencies, boards, hospitals, and universities—from liability and from suit—unless the immunity has been waived. Similarly, sovereign immunity protects political subdivisions—including counties, cities, and school districts—from liability and from suit—unless the immunity has been waived.
Thus, sovereign immunity encompasses two principles: (1) immunity from suit and (2) immunity from liability. Immunity from suit bars a suit against the state or other governmental entity unless the Legislature expressly gives consent. Immunity from liability protects the state or other governmental entity from judgments even if the Legislature has expressly given consent to sue.
In some states, when a governmental entity contracts, it is liable on contracts made for its benefit as if it were a private person. Consequently, when a governmental entity contracts with private citizens it waives immunity from liability. But the governmental entity does not waive immunity from suit simply by contracting with a private person. Legislative consent to sue is still necessary.
A party may establish legislative consent by referencing a statute or a resolution granting express legislative permission. Legislative consent to sue the state or other governmental entity must be expressed in clear and unambiguous language.
In Texas, sovereign immunity is a legal doctrine that protects the state government, its agencies, and political subdivisions from being sued or from having to pay damages in lawsuits, unless this immunity has been explicitly waived by the state legislature. The Texas Tort Claims Act is an example of such a waiver, where the state has consented to be sued in certain circumstances, such as personal injury or property damage caused by the negligence of state employees during the operation of motor vehicles or other equipment. However, even with this Act, there are strict limitations on the types of cases that can be brought against the state and the amount of damages that can be awarded. Additionally, when the state or a governmental entity enters into a contract, it may waive immunity from liability to the extent of the contract, but it does not waive immunity from suit unless there is an express legislative consent. To sue the state or a governmental entity in Texas, one must point to a statute or resolution that clearly and unambiguously grants permission to sue.
