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Civil Litigation No. 01-02-00294-CV, 5/22/2003. Click here for the full text of this decision FACTS: In these interlocutory appeals, the appellants, Glenn B. Freedman and Glenn A. Goerke, challenge the decisions of the trial courts in their respective cases to grant pleas to the jurisdiction filed by appellee, the University of Houston. On July 25, 1995, UH’s board of regents approved Goerke, a tenured faculty member of UH, to serve as interim president of UH for a term to begin Aug. 1, 1995, and continue for two years, or until the board appointed a permanent president. Freedman, also a tenured faculty member of UH, was appointed to serve a similar term as Executive Associate Vice President of UH. Each appellant entered into a written contract of employment with UH concerning their new positions. After a dispute arose between the appellants and UH concerning the terms of their respective contracts, the appellants filed separate lawsuits against UH. In each case, the appellants asserted claims against UH for breach of contract and for intentional “taking” of personal property. Each appellant also sought a declaratory judgment concerning the terms of their respective contracts, as well as recovery of their attorney’s fees. UH answered the suits, pleaded the affirmative defense of sovereign immunity, and filed pleas to the jurisdiction seeking dismissal of appellants’ claims. The trial courts subsequently granted the pleas. HOLDING: Affirmed. The appellants contend that the trial courts erred in granting UH’s pleas to the jurisdiction because UH is not immune from suit for breach of contract. Sovereign immunity embraces two principles: immunity from suit and immunity from liability. When the state or a governmental unit contracts with private citizens, it waives only immunity from liability; a private citizen must still obtain legislative consent to sue for breach of contract. The appellants argue that, in the Education Code, the Legislature has expressly consented to suits against UH, and that interpreting the Education Code as precluding their suits would violate the “open courts” provision of the Texas Constitution. The appellants rely on the language of Texas Education Code �111.33 as granting express legislative consent to sue UH. As noted by the parties, this Court has previously held that the “sue and be sued” language of �111.33 provided express consent to suits for breach of contract against UH. Fazekas v. Univ. of Houston, 565 S.W.2d 299 (Tex. Civ. App. – Houston [1st Dist.] 1978, writ ref’d n.r.e.). However, subsequent to Fazekas, the Legislature amended �111.33 to add its current final sentence. Contrary to appellants’ allegations, the effect of this additional language is not to render the first sentence of �111.33 meaningless. The first sentence clarifies the capacity in which UH’s board of regents has the authority to litigate, while the final sentence of �111.33 permits suits against UH “as authorized by law.” Therefore, under the terms of �111.33, as amended, the appellants can maintain their suits against UH for breach of contract, but must first obtain legislative consent to do so. The appellants argue that, if the legal effect of the 1985 amendment to �111.33 is to remove the statute’s prior express consent to sue, �111.33 as currently enacted violates the Texas Constitution’s “open courts” provision. The Texas Constitution provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation shall have a remedy by due course of law.” Texas Constitution article I �13. This provision has been held to apply to prohibit statutory restrictions of cognizable common law causes of action. Here, �111.33 does not foreclose the appellants’ suit or leave them without a remedy, it merely requires that appellants obtain legislative consent to suit before initiating litigation. Thus, �111.33 does not violate the “open courts” provision of the Texas Constitution. Moreover, as the Texas Supreme Court has indicated, merely “upholding established sovereign immunity law” does not violate the “open courts” provision. Here, the appellants sought a declaratory judgment concerning their rights under their contracts with UH. As the Texas Supreme Court has held, the appellants may not recast their contractual claims against UH as equitable claims to avoid the requirement of legislative consent to suit. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002). By entering into a contract with appellants, UH has not committed a “taking” of appellants’ personal property. When a trial court learns that it lacks jurisdiction to hear a cause, the court has little discretion but to immediately dismiss the cause. Thus, a trial court may not abate a suit to await developments in the positions or claims of the parties that may trigger its jurisdiction; jurisdiction must be present at the outset of the litigation. OPINION: Jennings, J.; Hedges, Jennings and Alcala, JJ.

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