BEA ANN SMITH, Justice.
Appellant, Dr. Joseph Smith, asks this Court to resurrect the "waiver by conduct" exception to sovereign immunity for contracts executed before August 30, 1999. Because waiver by conduct has been effectively rejected by the supreme court even in those circumstances, we affirm the trial court's grant of the plea to the jurisdiction.
In March 1999, Smith entered into a contract with the University of Texas (the University)
The contract provided that Smith remain the owner of the intellectual property created in developing the Career Launch software. The agreement also provided that to protect Smith's intellectual property, only persons pre-approved by the career center and Smith would be allowed to access his source code. The University allegedly breached this agreement by allowing persons other than those approved by Smith to review the computer program and by not returning the software to him upon his request. The program contained an anti-hacker mechanism that would disable the software if an unauthorized person attempted to access it.
At some point in the dispute, the software was allegedly disabled, and the University paid another computer specialist, Don Lahey, $150,000 to remedy the problem rather than seek help from Smith. The Austin Police Department received an anonymous tip that Smith was the hacker who had disabled the system. The police raided his offices and seized his equipment for a period of time, preventing him from completing other contracts. The University refused Smith access to his source code, again preventing him from meeting his other contractual obligations.
Standard of review
A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.). In order to prevail, the party asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. Id. Because subject-matter jurisdiction presents a question of law, we review the district court's decision de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Caldwell, 23 S.W.3d at 135.
In reviewing a trial court's ruling on a plea to the jurisdiction, we do not look at the merits of the case; rather, we "construe the pleadings in favor of the plaintiff," looking to the pleader's intent and accepting the factual allegations as true. Caldwell, 23 S.W.3d at 135. "The truth of the plaintiff's allegations is at issue only if the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court." Id. Further, "a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Texas Parks & Wildlife Dep't v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999).
Waiver by conduct
Smith urges this Court to reconsider whether the sovereign-immunity doctrine in contract claims contains an exception when the State has waived immunity from suit by its conduct. Normally, the State can waive immunity from suit only by statute or legislative resolution. See Texas Natural Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex.2002). This is because the supreme court has recognized that "it is the Legislature's sole province to waive or abrogate sovereign immunity." Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex.1997), quoted in IT-Davy, 74 S.W.3d at 853. When the State contracts with a private party, it waives immunity from liability but does not waive its immunity from suit. General Servs. Com'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex.2001).
Smith concedes that as Texas law now stands, absent a legislative resolution authorizing suit against the State, the sole remedy of a private party seeking to resolve a breach-of-contract claim against the State is an administrative remedy under
Id. at 857.
Smith relies on the concurring opinion in which four different justices
Smith's circumstances cannot be distinguished from IT-Davy's, and he is no closer to finding the "magic key." Since IT-Davy, this Court has only recognized a waiver of immunity in contract cases when the State has first sued the contracting party. See State v. Fidelity & Deposit Co. of Maryland, 127 S.W.3d 339, 343-44 (Tex.App.-Austin 2004, pet. filed) (citing IT-Davy, 74 S.W.3d at 861 ("As one example, it has long been held that the State can waive immunity by filing suit.") (Hecht, J., concurring)); see also Reata Constr. Corp. v. City of Dallas, ___ S.W.3d ___, ___, 2004 WL 726906, *2-3, 47 Tex. Sup.Ct. J. 408, 409, 2004 Tex. LEXIS 303, *6-8 (Apr. 2, 2004) (per curiam); Kinnear v. Comm'n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex.2000). We await further guidance from the supreme court on what additional conduct might be sufficiently egregious to waive the State's immunity from suit.
Smith's second issue asserts that even without jurisdiction to hear this contract
The Uniform Declaratory Judgment Act (UDJA) is a remedial statute designed "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (West 1997). The Act provides:
Id. § 37.004(a) (West 1997).
Although he alleges that the University is acting unlawfully by denying him access to and possession of his software, Smith cites no statutes that such action specifically violated.
The supreme court has outlined two distinct types of declaratory-judgment suits against the State. The first is a suit that is brought against state officers who allegedly act without legal or statutory authority and that seeks to compel the officers to act within their official capacity; these are not considered suits against the State and therefore do not implicate sovereign immunity. See IT-Davy, 74 S.W.3d at 855; W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 840 (1958); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945). On the other hand, declaratory-judgment actions brought against state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities are considered suits against the state because they seek
We conclude that Smith's declaratory-judgment claim fits into the second category — one seeking to establish a contract's validity or enforce performance under a contract. Smith's ownership of the software was outlined in an addendum to the contract. Also, the contract and license agreement contained the specific details regarding access and ownership rights in the software. When the State acts within a color of right to withhold property in a contractual situation, for instance by believing that its actions are justified due to disagreements over payment due or performance under the contract, we have held that it does not have the requisite intent to take property for public use. Green Int'l, Inc. v. State, 877 S.W.2d 428, 434 (Tex.App.-Austin 1994, writ dism'd by agr.). Similarly, we conclude that when the State acts under a color of right to withhold property acquired by it under a contract, a suit seeking declaratory relief concerning the ownership, possession, or access to that property is a suit based in contract, for which legislative consent must be obtained.
We conclude that Smith is improperly attempting to circumvent the State's sovereign immunity from suit by characterizing his contract dispute as a declaratory-judgment claim. See IT-Davy, 74 S.W.3d at 859. This is not permitted. See id.; Federal Sign, 951 S.W.2d at 405.
In his final issue, Smith argues that the trial court erred in dismissing his constitutional takings claim. See Tex. Const. art. I, § 17 ("No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person."); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); State v. Biggar, 848 S.W.2d 291, 295 (Tex.App.-Austin 1993), aff'd, 873 S.W.2d 11 (Tex.1994). Smith correctly asserts that sovereign immunity does not bar a claim for a constitutional taking.
Whether particular facts constitute a taking is a question of law. See Mayhew, 964 S.W.2d at 936. The supreme court has outlined a three-part test to identify a constitutional taking: (1) the State intentionally performed certain acts, (2) that resulted in a "taking" of property, (3) for public use. Little-Tex, 39 S.W.3d at 598; Steele, 603 S.W.2d at 788-92. To meet the first prong, the State must have the requisite intent to be acting under its eminent domain powers, rather than merely withholding property or money in a contract dispute. Little-Tex, 39 S.W.3d at 598-99; Green Int'l, 877 S.W.2d at 434. "The State, in acting within a color of right to take or withhold property in a contractual situation, is acting akin to a private citizen and not under any sovereign powers." Little-Tex, 39 S.W.3d at 599; see Green Int'l, 877 S.W.2d at 434. The Little-Tex court concluded that because that dispute was a disagreement about the contractor's
Similarly, here the University obtained possession of the software by virtue of the contract with Smith. When a dispute arose over Smith's performance and the University's payments, the University refused Smith access to or possession of the software. By doing so, the University was acting under color of its contractual rights; it did not have the requisite intent to take Smith's property by eminent domain. See id.; Green Int'l, 877 S.W.2d at 434.
Additionally, Smith voluntarily entered into the contract with the University and created and delivered his software pursuant to the contract. When a party consents to the government's possession of its property, there can be no constitutional taking. Green Int'l, 877 S.W.2d at 435; State v. Steck, 236 S.W.2d 866, 869 (Tex.Civ.App.-Austin 1951, writ ref'd), cited with approval by Little-Tex, 39 S.W.3d at 599; see also Palacios Seafood, Inc. v. Piling, Inc., 888 F.2d 1509, 1515 (5th Cir.1989). We hold that the district court properly granted the University's plea to the jurisdiction on the takings claim. We overrule Smith's third issue.
The waiver-by-conduct exception once recognized by this Court in Pelzel, DalMac, Aer-Aerotron, IT-Davy, and Little-Tex but rejected by the supreme court is not resurrected for those contracts that pre-date the effective date of the administrative remedies created in chapter 2260. IT-Davy refutes any such suggestion. If the supreme court intends to recognize certain conduct as waiving immunity, we await its lead in identifying what that conduct might be. Under the existing state of the law, the University did not waive its sovereign immunity from suit on the contract by its conduct here nor did it have the requisite intent to take Smith's property under its eminent-domain powers. Smith's declaratory-judgment claim is also barred by sovereign immunity because it cannot stand apart from the contract suit. The district court properly granted the University's plea to the jurisdiction, and we affirm its order of dismissal.
Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 408 n. 1 (Tex.1997).