Paul and Gayle Lindsey, acting individually and on behalf of their daughter, Linda Jill Lindsey, sued the State of Texas alleging: (1) intentional, grossly negligent, or negligent failure to provide Linda Jill with educational services mandated by the Texas Education Code; and (2) discrimination under 42 U.S.C. § 1983 (1981). Based on federal law, the trial court granted a takenothing summary judgment as to the section 1983 claim. The court later granted a take-nothing summary judgment, based on governmental immunity, as to the remaining claims. The Lindseys appeal, challenging only the trial court's governmental-immunity ruling. We will affirm.
Born in 1965, Linda Jill Lindsey is deaf and emotionally disturbed. The Texas Education Code provides that "[t]he Texas School for the Deaf shall: (1) provide educational services on a day or residential basis to deaf students for whom adequate educational opportunities are unavailable in their local or regional programs." Tex. Educ.Code Ann. § 11.03(i)(1) (1991). The Education Code also provides:
Tex.Educ.Code Ann. § 11.032(a) (1991).
Although medical advice indicated that Linda Jill needed a structured twelve-month school program, and although the Lindseys and their local school district requested such a program for her, the Texas School for the Deaf did not provide it. The Lindseys felt that this failure violated the foregoing sections of the Education Code.
In 1981 the Lindseys obtained from the legislature passage of a resolution permitting them to sue the State for any injuries resulting from the State's actions regarding Linda Jill. See Tex.S.Con.Res. 69, 67th Leg., 1981 Tex.Gen.Laws 3911. Although the resolution permitted the Lindseys to sue the State, it contained the following provisions:
RESOLVED, That nothing in this resolution may be construed as an admission by the State of Texas or by any of its employees, agents, departments, agencies, or political subdivisions of liability or of the truth of any allegations asserted by the claimant, but the alleged cause of action must be proved under the laws of this state as in other civil suits; and, be it further
RESOLVED, That nothing in this resolution may be construed as a waiver of any defense of law or fact available to the State of Texas or to any of its employees, agents, departments, agencies, or political subdivisions, but every defense is specifically reserved.
Tex.S.Con.Res. 69, supra.
In May 1983 the Lindseys filed the present suit. In February 1990, based on Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the trial court granted partial summary judgment against the Lindseys on their section 1983 claim; the Lindseys do not complain of that ruling in this appeal. Based on governmental immunity, the trial court later granted summary judgment against the Lindseys on their claims for intentional, grossly negligent, or negligent violation of the various provisions of the Education Code.
The Lindseys challenge the trial court's governmental-immunity ruling on two grounds: (1) that the senate concurrent resolution waived the State's immunity from liability as well as its immunity from suit; and (2) that the sections of the Education Code quoted above provide a sufficient "legal obligation existing under prior law" to avoid the State's immunity from liability.
The Lindseys first argue that Senate Concurrent Resolution No. 69 waived the State's immunity from liability as well as
The Lindseys also argue that the State's immunity from liability may be overcome by "a legal obligation which exists under prior law." The requirement of "pre-existing law" comes from section 44 of article 3 of the Texas Constitution:
Tex. ConstAnn. art. Ill, § 44. The Lindseys contend that this requirement is met in the present case through the Education Code's imposition of specific obligations on the Texas School for the Deaf. We disagree.
The Lindseys direct our attention to three cases they say exemplify the conditions necessary to satisfy the pre-existinglaw requirement: (1) State v. City Nat'l Bank, 603 S.W.2d 764 (Tex.1980); (2) State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); and (3) Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242 (Tex.1934). All are distinguishable from the present case.
In City National Bank, the court allowed a money judgment against the State for 13 months' occupancy of the bank's building by a state commission after the primary term of the party's lease had expired. The court's decision was based, however, solely on the fact that the bank's suit was for breach of a written contract, i.e., the lease agreement. 603 S.W.2d at 765-66. The State's entry into a contract waives its immunity from liability with regard to claims made under the contract:
Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898); see also Dillard v. Austin Indep. School Dist, 806 S.W.2d 589, 592-93 (Tex.App.1991, writ requested); Courtney v. University of Texas Sys., 806 S.W.2d 277, 281-82 (Tex.App.1991, writ denied). The present case does not include a contractual claim. City National Bank is inapposite.
Hale involved a claim for flood damage to the plaintiff's land caused by a nearby public construction project. The supreme court permitted the claim on the theory that the construction "constituted a taking or damaging of their property for public use," compensable under article I, section 17 of the Texas Constitution. 146 S.W.2d at 735-37. There was no discussion of the pre-existing-law requirement found in article III, section 44.
In Austin National Bank, a foreign corporation paid a tax under duress. Shortly
71 S.W.2d at 245. The court next held that "a common-law right is a right under a `pre-existing law' within the meaning of the constitutional provision under discussion here." Id. Finally, the court held that the repayment of an illegal tax constituted a "legal obligation" of the State for purposes of article III, section 44 of the constitution. Accordingly, the court held that the claim was not barred by the State's immunity from liability.
While the supreme court's holding in Austin National Bank elucidates the meaning of the constitutional provision in question, it does not control the present case. In concluding that the claim was a pre-existing "valid obligation" on the part of the State, the court in Austin National Bank emphasized that illegally collected tax money "never becomes the property of the state as against the real owner." 71 S.W.2d at 246. Thus, the court effectively held that tax funds illegally collected by the State are held by the State in trust for the true owner. In the present case, on the other hand, the Lindseys' claim is not for money held in trust by the State, nor is it even for a liquidated sum. The doctrine enunciated in Austin National Bank cannot be extended to include such a claim.
We conclude that the Lindseys' claim is not one "provided for by pre-existing law" within the meaning of article III, section 44 of the Texas Constitution. Although the relevant provisions of the Education Code imposed certain duties on the State, they did not expressly obligate the State to pay the Lindseys' claim for damages.
The judgment of the trial court is affirmed.