Appellee, Federal Sign (Federal), brought suit against Texas Southern University (TSU) for claims arising out of a contract for the construction of basketball-arena scoreboards. TSU filed a plea to the jurisdiction, asserting that sovereign immunity barred Federal's suit. The trial court initially sustained TSU's plea and abated the case. However, on Federal's motion for rehearing, the trial court set aside the previous abatement and set the case for trial. The case was tried to a jury in October 1992. The jury returned a verdict against TSU. Appellant raises a single point of error contending the trial court erred in overruling its plea to the jurisdiction. By a single cross-point of error, Federal complains of the trial court's failure to disregard the jury's answer to the damage question. We reverse.
In 1988, the TSU Board of Regents began accepting proposals for the fabrication, delivery and installation of basketball arena scoreboards for use in TSU's Health and Physical Education Facility.
On September 5, 1989, TSU sent a letter to Federal informing Federal that it found Federal's proposal unacceptable and would pursue other avenues to secure a scoreboard. TSU thereafter entered into a contract with another sign manufacturer for the construction of the arena scoreboard. On March 15, 1990, Federal filed suit alleging breach of contract and violation by TSU of the competitive bidding and open meetings laws.
In its sole point of error, appellant contends the trial court erred in overruling its plea to the jurisdiction because contract claims against the State are barred by the doctrine of sovereign immunity.
Under the doctrine of sovereign immunity, a suit against a state institution is a suit against the State. See Courtney v. University of Tex. Sys., 806 S.W.2d 277, 281 (Tex.App.—Fort Worth 1991, writ denied). Texas Southern University is a state institution. TEX.EDUC.CODE ANN. § 61.003(3) (Vernon 1991); TEX.EDUC.CODE ANN. § 106.01 (Vernon 1991). Therefore, Federal's contract was with the State. See Alcorn v. Vaksman, 877 S.W.2d 390, 402 (Tex.App.— Houston [1st Dist.] 1994, n.w.h.).
Sovereign immunity consists of two basic principles of law. First, unless waived, the State has immunity from liability. Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 425 (1936). See TEX.CIV.PRAC. & REM.CODE ANN. § 107.002(b) (Vernon Supp.1994) (legislative resolution granting permission to sue does not waive to any extent immunity from liability). The State waives its immunity from liability when it enters into a contract. Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898). In Fristoe, the court stated that:
45 S.W. at 999.
Second, even though the State waives its immunity from liability when it enters into a contract, it retains its immunity from suit. W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 (1958); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.—Austin 1991, writ denied); State v. Elliott, 212 S.W. 695, 698-701 (Tex. Civ.App.—Galveston 1919, writ ref'd). The State, as sovereign, is immune from suit without consent even if there is no dispute regarding the State's liability. Missouri Pac. R.R., 453 S.W.2d at 813. The doctrine bars a suit against the State unless the State has expressly given its consent to be sued. Id. at 814; Green Int'l, Inc. v. State, 877 S.W.2d 428 (Tex.App.—Austin 1994, n.w.h.). The State may consent to suit by enacting a statute that waives immunity or by passing a legislative resolution. Once it does so, it is liable under contract law the same as anyone else. Alcorn, 877 S.W.2d at 403. Here, we are concerned with the State's immunity from suit, not its immunity from liability.
Tex.Educ.Code Ann. § 106.38 (Vernon 1991). Federal contends that this provision provides legislative consent to sue TSU for breach of contract. We do not agree.
For the Legislature to waive the State's sovereign immunity, it must do so by clear and unambiguous language. Duhart v. State, 610 S.W.2d 740 (Tex.1980). Nothing in section 106.38 indicates a clear intent to grant consent to suit. In those instances where consent has been granted by statute, the Legislature has been very precise in its use of words. Only twice has the Legislature done so. The first instance concerned the University of Houston. The Legislature provided that:
TEX.EDUC.CODE ANN. § 111.33 (Vernon 1991). This language has been held to grant consent to sue the University of Houston. Fazekas v. University of Houston, 565 S.W.2d 299, 302 (Tex.App.—Houston [1st Dist.] 1978, writ ref'd n.r.e.).
Again, in chapter 76 of the Education Code, the Legislature provided consent for suit against the University of Texas at Tyler. Section 76.04 provides that:
TEX.EDUC.CODE ANN. § 76.04 (Vernon 1991).
Noticeably missing from section 106.38 is any language indicating any right of the board of regents of TSU to sue or be sued. Section 106.38 simply establishes venue for suits that might arise and the proper agents for service of process. We cannot say that the language clearly gives legislative consent to sue TSU. In other words, the State never consented to be sued. We have found no authority allowing recovery of money damages against the State without its consent in a "pure" contract case. Courtney, 806 S.W.2d at 281-82.
Because of our holding, we necessarily overrule Federal's cross-point contending the trial court erred in refusing to disregard jury answers on damages.
We reverse the judgment of the trial court and remand with instructions that the case be dismissed.
We note that the DeSoto court eventually conceded that a statute authorized suits against the DeSoto school board. Thus, its statement on sovereign immunity appears to be dicta.