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A former music instructor at a state university can sue the school on his claim that it failed to live up to its part of a settlement agreement over his termination, a split Texas Supreme Court has ruled. In a plurality decision, the high court said that the state did not have immunity from the breach-of-contract suit filed by Grant M. Lawson. The court decided Texas A&M University-Kingsville, et al. v. Lawson on June 20. Lawson’s attorney, sole practitioner Bradley Houston of Austin, calls the ruling a big victory, especially for government workers. He says the state takes the position that if litigants want to sue over alleged breaches in a settlement agreement, they have to go to the Legislature for permission. His client tried that and got nowhere, he says. “It has really far-reaching implications for labor,” Houston says of the high court decision. “The most likely litigant against the state is its employees or former employees for things like sexual harassment, gender and racial discrimination, and violations in whistleblower cases.” Mike Viesca, a spokesman for the Texas attorney general’s office, says the agency has no comment on the ruling. According to the court’s opinion, Lawson sued over his firing in 1997 as a faculty member and clarinet instructor at Texas A&M University-Kingsville, alleging violations of the Whistleblower Act, his constitutional freedom of association, expression, petition and privacy, and interference with business relations. The university asserted that all of Lawson’s claims were barred by sovereign immunity, the high court noted, and the trial court agreed except as to the whistleblower claim and the constitutional claim for equitable relief. The two sides then reached an agreement under which the university paid Lawson $62,000, and the former instructor dismissed the action with prejudice. Although Lawson had been an instructor and not a professor, Texas A&M also agreed that if any official inquiry were made regarding his employment, the director of personnel would say that Lawson was employed as an assistant professor, according to the opinion. Lawson subsequently sued the university for breach of contract, alleging that it had responded to inquiries from potential employers differently than it had agreed. After Texas A&M’s claim of sovereign immunity was rejected by Judge F. Scott McCown of the 126th District Court in Travis County, the university made an interlocutory appeal to the 3rd Court of Appeals in Austin. The appeals court affirmed the trial court, saying that state agencies waive their immunity from suit by accepting some of the benefits of a contract (the settlement) and refusing to pay for them. The Texas Supreme Court plurality rejected the 3rd Court’s view that immunity from suit is waived merely by accepting some of the benefits of a contract. However, the plurality opinion notes that the Legislature has waived immunity from suit for violations of the Whistleblower Act, one of the claims in Lawson’s original suit, and said that the instructor was entitled to sue and to hold the university liable if he prevailed. “We agree with the trial court that when a governmental entity is exposed to suit because of a waiver of immunity, it cannot nullify that waiver by settling the claim with an agreement on which it cannot be sued,” Justice Nathan Hecht wrote for the plurality. Chief Justice Thomas Phillips and Justices Priscilla Owen and Wallace Jefferson joined Hecht. Justice Craig Enoch concurred, but for a different reason. “I join the Court’s judgment, but only because I maintain that the Legislature, by authorizing state agencies to enter into contracts, has expressly waived sovereign immunity,” he wrote. “The University executed the settlement agreement; thus it may not interpose sovereign immunity as a defense to suit on the agreement.” Four justices, however, said the plurality sidesteps recent precedent and erroneously concludes that the university cannot assert immunity. “Although the State may waive its immunity from liability by contracting, this Court has repeatedly held that the State does not waive its immunity from suit simply by entering into a contract, and therefore a private citizen must have legislative consent to sue the state on a breach of contract claim,” Justice Xavier Rodriguez wrote for the dissenters. “Lawson sued the University for breach of contract, and thus the University has immunity from Lawson’s suit unless the Legislature has waived that immunity.” He added that Lawson’s suit over the alleged breach is independent of his wrongful-termination allegations. “When Lawson settled, he traded in his wrongful-termination claims for a settlement contract, and, in addition to accepting $62,000, he accepted the risk that the State could assert immunity if it breached the contract, just as all people who contract with the State accept that risk,” Rodriguez wrote. Justices James Baker, Deborah Hankinson and Harriet O’Neill joined the dissent. Brian Hail, a partner in Godwin Gruber in Dallas who practices commercial and employment litigation, says the ruling doesn’t create any new immunity. Rather, it allows settlements to be enforced in circumstances where the state has no immunity or has waived immunity, he says. Without the ability to hold the state to its end of an agreement, settling disputes would be very difficult, says Hail, who is not involved in the case. Notes Hail, “In the American judicial system, one thing that makes it easy for businesses to deal with each other is the rule of law.”

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