Federal Sign v. Texas Southern University

951 S.W.2d 401, 1997 WL 336323

• Court: Texas Supreme Court
• Decided: October 2, 1997
• Docket: 94-1317
• Status: Published

Opinions

BAKER, Justice,

delivered the opinion of the Court

in which PHILLIPS, Chief Justice, GONZALEZ, HECHT, CORNYN and OWEN, Justices, join.

The issue in this case is whether the sovereign immunity doctrine precludes Federal Sign, a private party, from suing Texas Southern University, a state institution, for breach of contract without legislative permission. The trial court denied TSU’s plea to the jurisdiction, which was based on sovereign immunity from suit. Following a jury trial, the trial court rendered judgment on the verdict for Federal Sign. TSU appealed, urging as its sole point of error that the trial court erred by denying its plea to the jurisdiction. TSU asserted that sovereign immunity bars contract claims against the State. The court of appeals agreed and reversed the trial court and remanded the case to the trial court with instructions to dismiss. We agree with the court of appeals. Accordingly, we affirm the court of appeals’ judgment.

I. FACTS AND PROCEDURAL BACKGROUND

In late 1988, TSU began accepting bids for the construction and delivery of basketball scoreboards for its new Health and Physical Education facility. Federal Sign submitted a bid for the contract. Federal Sign secured the Pepsi-Cola Company as sponsor. In early 1989, TSU accepted Federal Sign’s bid. TSU instructed Federal Sign to begin building the scoreboards. Following TSU’s instructions, Federal Sign began building the scoreboards. However, in September 1989, before Federal Sign delivered anything to TSU, TSU notified Federal Sign that Federal Sign’s bid was unacceptable and told Federal Sign that TSU intended to pursue other avenues to secure the scoreboards. Later, TSU contracted with Spectrum Scoreboards and Coca-Cola for the scoreboards.

In early 1990, Federal Sign sued TSU. Federal Sign alleged TSU breached the contract and violated the competitive bidding and open meeting laws. Federal Sign sued for damages of $67,481 in lost profits and $22,840 in expenses. TSU answered Federal Sign’s suit and filed a plea to the jurisdiction. TSU asserted that its sovereign immunity barred Federal Sign’s suit. The trial court originally abated Federal Sign’s action until Federal Sign obtained legislative consent to sue.

Rather than obtaining legislative consent to sue, Federal Sign moved for rehearing. Federal Sign asserted that it did not need legislative consent to sue TSU under the facts of the ease. The trial court granted Federal Sign’s motion and set aside the abatement order. The parties tried the case to a jury. The trial court rendered judgment for Federal Sign based on the jury’s finding of a breach of contract and awarded Federal Sign the damages the jury found.

TSU appealed, contending that the trial court erred by overruling TSU’s plea to the jurisdiction. TSU argued that sovereign immunity barred Federal Sign’s contract claims. The court of appeals agreed and reversed the trial court’s judgment. The court of appeals remanded the case to the trial court with instructions to dismiss Federal Sign’s suit.

We granted writ of error to determine Federal Sign’s claims that the court of appeals erred in holding that, absent legislative consent, TSU was immune from suit because: (1) Federal Sign’s allegation that TSU violated state laws in connection with the Federal Sign contract stated a claim for which specific legislative consent to sue was not necessary; (2) TSU waived immunity from suit and legislative consent was unnecessary when TSU entered into a contract with a private citizen; and (3) sovereign immunity from contract claims violates the Texas Constitution’s Open Courts and Due Course of Law provisions.

II. FEDERAL SIGN’S STATE LAW CLAIMS

Federal Sign first asserts that because it alleged causes of action for which it did not need legislative permission to sue TSU, the trial court correctly set aside the abatement order and allowed the ease to proceed to trial. Federal Sign argues that it did not need legislative consent to sue TSU because its claims included allegations of TSU’s state law violations. In its original petition, in addition to its breach of contract claim, Federal Sign alleged that TSU officials violated the Competitive Bidding on Contracts Statute, Tex. Educ.Code § 51.907, and the Open Meetings Act, Tex.Rev.Civ. Stat. art. 6252-17 (Vernon 1970), repealed by Act or Apr. 30, 1988, 73rd Leg., R.S., ch. 268, § 46(1), 1993 Tex. Gen. Laws 583, 986.

A. Applicable Law

A private litigant does not need legislative permission to sue the State for a state official’s violations of state law. Director of the Dept. of Agric. & Env’t v. Printing Indus. Ass’n of Texas, 600 S.W.2d 264, 265-66 (Tex.1980)(holding legislative consent not required for suit for injunctive relief against state agency to halt unauthorized printing equipment and printing activities); Texas Highway Comm’n v. Texas Ass’n of Steel Importers, Inc., 372 S.W.2d 525, 530 (Tex.1963)(holding legislative consent not required for declaratory judgment suit against Highway Commission to determine the parties’ rights); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945)(holding legislative consent not required for declaratory judgment suit against State Comptroller to determine parties’ rights under tax statute). A state official’s illegal or unauthorized actions are not acts of the State. See, e.g., Director of the Dep’t of Agric. & Env’t, 600 S.W.2d at 265-66; Texas Highway Comm’n, 372 S.W.2d at 525; Cobb, 190 S.W.2d at 712. Accordingly, an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars. See Cobb, 190 S.W.2d at 712. In other words, we distinguish suits to determine a party’s rights against the State from suits seeking damages. A party can maintain a suit to determine its rights without legislative permission. See Cobb, 190 S.W.2d at 712.

B. Application op Law to Facts

Here, Federal Sign argues that the trial court correctly overruled TSU’s plea to the jurisdiction because its live pleadings, when the trial court lifted the abatement order, included Competitive Bidding and Open Meetings Acts violations — potential state law violations. See Director of Dept. of Agric. and Env’t, 600 S.W.2d at 265-66; Texas Highway Comm’n, 372 S.W.2d at 530; Cobb, 190 S.W.2d at 712. However, even though Federal Sign may not have needed legislative permission to sue TSU on these claims, Federal Sign still sought damages for its breach of contract claim. Consequently, because Federal Sign’s suit sought monetary damages from the State, its breach of contract claim did not fit under the rule established in Cobb, Director of Department of Agriculture and Environment, and Texas Highway Commission. Therefore, Federal Sign’s state violation claims did not dispense with the necessity that Federal Sign secure legislative consent to sue TSU for damages for breach of contract.

III. SOVEREIGN IMMUNITY

Federal Sign next argues that the court of appeals erred by reversing the trial court’s judgment based on sovereign immunity. Federal Sign first argues that the State waives its sovereign immunity protection when it enters into a contract with a private citizen. Then Federal Sign argues that, if sovereign immunity protects the State from breach of contract suits, any contract the State enters into with a private citizen is illusory and void because it lacks mutuality. Lastly, Federal Sign contends that if sovereign immunity is the law in Texas, then “this court should act to declare in clear and unmistakable language that the doctrine of sovereign immunity does not apply in any form when the State enters into a contract with a citizen.”

A. Sovereign Immunity and State Contracts

1. Applicable Law — Sovereign Immunity

This Court has long recognized that sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State. Director of the Dep’t of Agric. & Env’t, 600 S.W.2d at 265; Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 152-53 (1960); Hosner v. DeYoung, 1 Tex. 764, 769 (1847). Sovereign immunity embraces two principles: immunity from suit and immunity from liability. Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970). First, the State retains immunity from suit, without legislative consent, even if the State’s liability is not disputed. Missouri Pac. R.R., 453 S.W.2d at 813. Second, the State retains immunity from liability though the Legislature has granted consent to the suit. Missouri Pac. R.R., 453 S.W.2d at 813.

Immunity from suit bars a suit against the State unless the State expressly gives its consent to the suit. Missouri Pac. R.R., 453 S.W.2d at 813; see also Tex. Civ. Prac. & Rem.Code § 101.025; Tex. Civ. Prac. & Rem.Code §§ 107.001-005. In other words, although the claim asserted may be one on which the State acknowledges liability, this rule precludes a remedy until the Legislature consents to suit. Missouri Pac. R.R., 453 S.W.2d at 813. The State may consent to suit by statute or by legislative resolution. Missouri Pac. R.R., 453 S.W.2d at 814. Legislative consent for suit or any other sovereign immunity waiver must be “by clear and unambiguous language.” University of Texas Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980).

Immunity from liability protects the State from judgments even if the Legislature has expressly given consent to the suit. Missouri Pac. R.R., 453 S.W.2d at 813. In other words, even if the Legislature authorizes suit against the State, the question remains whether the claim is one for which the State acknowledges liability. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 425 (1936); see also Governmental Immunity From Suit and Liability in Texas, 27 Tex. L. Rev. 337, 342 (1949). The State neither creates nor admits liability by granting permission to be sued. Tex. Civ. Prac. & Rem.Code § 107.002 (“A resolution granting permission to sue does not waive to any extent immunity from liability.”); Isbell, 94 S.W.2d at 424-25. However, when the State contracts, the State is liable on contracts made for its benefit as if it were a private person. State v. Elliott, 212 S.W. 695, 697-98 (Tex.Civ.App.—Galveston 1919, writ ref'd). Consequently, when the State contracts with private citizens it waives immunity from liability.

2. Conflict of Authority— Fristoe v. Blum

However, there is a conflict among the courts of appeals on whether the State, by entering into a contract with a private citizen, waives immunity from suit by the fact that it has made the contract and thus legislative consent for suit is not necessary. A majority of the cases that have considered the issue hold that when the State contracts with a private citizen, it waives immunity from liability, but retains immunity from suit. See, e.g., Alcorn v. Vaksman, 877 S.W.2d 390, 403 (Tex.App.—Houston [1st Dist.] 1994, writ denied); Green Int’l, Inc. v. State, 877 S.W.2d 428, 432-33 (Tex.App.—Austin 1994, writ dism’d by agr.); Courtney v. University of Texas Sys., 806 S.W.2d 277, 282-83 (Tex.App.—Fort Worth 1991, writ denied); Atchison, Topeka & Santa Fe Ry. v. Texas State Dep’t of Highways and Pub. Transp., 783 S.W.2d 646, 648 (Tex.App.—Houston [14th Dist] 1989, no writ); Texas Dep’t of Human Servs. v. Trinity Coalition, Inc., 759 S.W.2d 762, 764 (Tex.App.—El Paso 1988), cert. dism’d, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990); Miller v. Hood, 536 S.W.2d 278, 284 (Tex.Civ.App.—Corpus Christi 1976, writ ref'd n.r.e.).

However, other cases hold that the State waives its sovereign immunity, including immunity from suit, when it contracts with private citizens. See, e.g., Ntreh v. University of Texas at Dallas, 936 S.W.2d 649, 654 (Tex.App.—Dallas 1996, writ requested); Texas Dept. of Health v. Texas Health Ent., 871 S.W.2d 498, 506 (Tex.App.—Dallas 1993, writ denied); Couch v. Ector County, 860 S.W.2d 659, 661 (Tex.App.—El Paso 1993, no writ); Industrial Constr. Management v. DeSoto Indep. Sch. Dist., 785 S.W.2d 160, 163-164 (Tex.App.—Dallas 1989, no writ); Board of Regents of Univ. of Texas v. S & G Constr. Co., 529 S.W.2d 90, 97 (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.); Cummins v. Board of Trustees of Eanes Indep. Sch. Dist., 468 S.W.2d 913, 917 (Tex.Civ.App.—Austin 1971, no writ).

Despite the different conclusions these courts reached, all relied on Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998 (1898), for their authority. Yet, Fristoe did not involve a breach of contract claim against the State nor did it directly involve sovereign immunity. In fact, Fristoe does not explicitly discuss either immunity from liability or immunity from suit. Recognizing that Fristoe did not involve the issue before the Court, we nonetheless discuss Fristoe because the conflicting courts of appeals and the parties base their conclusions upon their interpretations of Fristoe.

Fristoe involved a trespass to try title suit by Leon Blum against J.W. Fristoe. Fristoe, 45 S.W. at 999. In 1883, I.M. Bennick bought land from the State under a contract to purchase. In 1891, Bennick transferred the land to D.P. Gay. Then, in 1894 Blum purchased the land from Gay. No one paid the interest on the purchase money under Bennick’s original purchase for 1892. In mid-1895, the commissioner of the land office declared the contract of purchase forfeited. Fristoe purchased the land from the State in late 1895. Consequently, Fristoe and Blum each claimed title to the land that originated with the State. In discussing the property’s rightful owner, the Court stated “[a] clear understanding of the relation in which the [S]tate stands to the purchasers in these contracts will greatly facilitate a proper solution of the questions upon which this case depends.” Fristoe, 45 S.W. at 999. Despite this avowed goal, this discussion in Fristoe has led to anything but a “clear understanding” of sovereign immunity in the breach of contract context. Because the discussion was not necessary to resolve the issue the Fristoe Court faced, it is dicta.

The conflicting courts of appeals, as well as the parties in this case, have tried to fashion the Fristoe dicta into support for each side’s respective view of sovereign immunity. Although one may read parts of Fristoe to support the conflicting views, Fristoe taken as a whole, says nothing about whether the State waives or retains its sovereign immunity when it contracts with private citizens.

Fristoe stated that when the State “becomes a suitor in its own courts, or a party to a contract with citizens, the same law applies to it as under like conditions governs the contracts of an individual.” Fristoe, 45 S.W. at 999. The Fristoe Court relied upon three Texas cases for this proposition. See State v. Snyder, 66 Tex. 687, 18 S.W. 106 (1886); State v. Purcell, 16 Tex. 305 (1856); State v. Kroner, 2 Tex. 492 (1847). None of these cases involved breach of contract suits against the State or the sovereign immunity doctrine. These cases stand only for the unremarkable proposition that “a State or other sovereignty, when it becomes a litigant in its own courts, must have its rights determined by the same principles applicable to other litigants.” Snyder, 66 Tex. at 700, 18 S.W. 106; Purcell, 16 Tex. at 309-10 (holding that the State must comply with statute of limitations like other litigants); Kroner 2 Tex. at 493 (holding the State is not immune from transcript filing deadlines on appeal). Further, this statement is true, at least with certain exceptions which need not be detailed here (such as, the State cannot contract away its police power). See City of Arlington v. City of Fort Worth, 844 S.W.2d 875, 878 (Tex.App.—Fort Worth 1992, writ denied); Pittman v. City of Amarillo, 598 S.W.2d 941, 945 (Tex.Civ.App.—Amarillo 1980, writ ref'd n.r.e.). This statement, however, has nothing to do with immunity from suit. To state what happens if the State consents to be sued says nothing about whether the State consents to be sued.

Fristoe then quoted from three out-of-state opinions. Carr v. State, 127 Ind. 204, 26 N.E. 778, 779 (1891); People v. Stephens, 71 N.Y. 527, 549-50 (1978) (Allen, J., concurring); and Morton, Bliss & Co. v. Comptroller Gen., 4 S.C. 430, 448 (1873). Each of these cases includes language that can be used to support or dispute whether the State waives immunity from suit when it contracts. However, when read together, these cases show only that the Fristoe Court did not intend to speak on the sovereign immunity issue.

Carr involved a suit on certificates, similar to bonds, which the court held that the State was required to pay because the Legislature had appropriated the funds to pay them. Fristoe quoted Carr as holding a State’s contracts “are interpreted as the contracts of individuals are, and the law which measures individuals’ rights and responsibilities measures, with few exceptions, those of a state whenever it enters into an ordinary business contract.” Carr, 26 N.E. at 779. However, Fristoe did not include Carr’s language that qualified this passage. The Carr court stated:

There is one essential and far-reaching difference between the contracts of citizens and those of sovereigns; not, indeed, as to the meaning and effect of the contract itself, but as to the capacity of the sovereign to defeat the enforcement of its contract. The one may defeat enforcement, but the other cannot. This result flows from the established principal that a state cannot be sued.

Carr, 26 N.E. at 779. Accordingly, Carr cannot stand for the proposition that the State waives immunity from suit by entering into a contract.

Stephens involved a suit by the State for conspiracy, not a suit against the State. Further, the Fristoe Court only quoted from a concurring opinion. Consequently, Stephens neither supports nor contradicts either position. See Stephens, 71 N.Y. at 549-550.

Morton involved a bondholder’s suit to force local officials to levy a tax to pay bonds because the State Legislature had required it by statute. Therefore, Morton involved an issue more akin to suits in which an individual sues a State official that has not complied with a statute or law. As we discussed in Part II of our opinion, this type of suit is allowed without legislative permission. See Director of the Dept. of Agric. & Env't, 600 S.W.2d at 265-66. Consequently, any language in Morton on waiver of immunity from suit is dicta and cannot be used to support an argument that the State either waives or retains immunity from suit when it contracts with private citizens.

While the courts of appeals and the parties here quote Fristoe for the parts they like, when read as a whole, we cannot read Fris-toe as deciding whether the State retains or waives immunity from suit in breach of contract cases. Therefore, it is simply impossible to base our decision on Fristoe.

3. Immunity from Suit

Fristoe aside, this Court has directly and affirmatively considered this issue without citing Fristoe. The three times this Court considered sovereign immunity in the breach of contract context, we held that the State is immune from suit arising from breach of contract suits. Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex.1970); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 839-41 (1958); Herring v. Houston Nat’l Exch. Bank, 114 Tex. 394, 269 S.W. 1031, 1033 (1925).

This Court first considered the sovereign immunity issue in the breach of contract arena in Herring v. Houston Nat’l Exch. Bank. In Herring, Houston National Exchange Bank sued the Texas Prison Commission to recover money that the bank alleged the Commission had not paid for the purchase of three acres of land. Herring, 269 S.W. at 1031. This Court held: “It is an attribute of sovereignty, and it is well established and generally conceded that the sovereignty cannot be sued in its courts without its consent.” 269 S.W. at 1031.

In Haden, the W.O. Haden Company operated under a State permit to take mudshell from Galveston Bay. When the Game & Fisheries Commission of Texas changed the terms of the permit, W.O. Haden sued for a declaration of its rights under what it contended to be a contract. Haden, 308 S.W.2d at 839. This Court held that a suit “seeking enforcement of contract rights is necessarily a suit against the State which cannot be maintained without legislative permission.” Haden, 308 SW.2d at 842.

Then, in Missouri Pacific R.R., Missouri Pacific sought indemnity from the Brownsville Navigation District for its liability in a wrongful death suit under a “written track agreement” with the Brownsville Navigation District. Missouri Pac. R.R., 453 S.W.2d at 813. This Court again recognized that the State is generally immune from suit for breach of contract. However, the Court held that a statute that provided that the Navigation District could “sue and be sued” met the legislative permission requirement. Missouri Pac. R.R., 453 S.W.2d at 813.

Therefore, when the State contracts with private citizens, the State waives only immunity from liability. However, a private citizen must have legislative consent to sue the State on a breach of contract claim. The act of contracting does not waive the State’s immunity from suit. Accordingly, we expressly overrule any cases that hold to the contrary.

4. Application of Law to Facts

Here, Federal Sign did not receive legislative permission to sue TSU. Therefore, the State did not waive its immunity from suit and Federal Sign could not maintain a breach of contract suit against TSU. See Missouri Pac. R.R., 453 S.W.2d at 813; W.D. Haden & Co., 308 S.W.2d at 842. Accordingly, the court of appeals correctly held that sovereign immunity precluded Federal Sign’s suit.¹

B. Contracts Between The State And Private Citizens

Federal Sign also asserts that, if the State is immune from suit, then any contract the State enters is void because it lacks mutuality. Federal Sign argues the contracts are void because they lack both mutuality of obligation and mutuality of remedy.

1. Applicable Law

A contract must be based upon a valid consideration, in other words, mutuality of obligation. See Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex.1970); Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 458 (1943); Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1105 (1923). Consideration is a bargained for exchange of promises. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991). Consideration consists of benefits and detriments to the contracting parties. Roark, 813 S.W.2d at 496. The detriments must induce the parties to make the promises and the promises must induce the parties to incur the detriments. Roark, 813 S.W.2d at 496. A contract that lacks consideration, lacks mutuality of obligation and is unenforceable. See Texas Farm Bureau, 253 S.W. 1101 at 1105.

Mutuality of remedy is the right of both parties to a contract to obtain specific performance. See Adams v. Abbott, 151 Tex. 601, 254 S.W.2d 78, 80 (1952); Langley v. Norris, 173 S.W.2d at 458; Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, 748 (1938). Unlike a contract lacking mutuality of obligation, a contract lacking mutuality of remedy is not illusory and void. See W.D. Haden & Co., 308 S.W.2d at 842. Mutuality of remedy does not concern contractual formation and does not imply that one party lacks a remedy of any kind. See Dobbs, Handbook on the Law of Remedies 49-52 (1973).

2. Application of Law to Facts

Federal Sign promised to build the scoreboards in exchange for TSU’s promise to pay for them. These promises represented the respective benefits and detriments, or the bargained for exchange, necessary to satisfy the consideration requirement. See Roark, 813 S.W.2d at 496. Accordingly, valid consideration supported a binding contract between Federal Sign and TSU. See Roark, 813 S.W.2d at 496; Texas Gas Util. Co., 460 S.W.2d at 412-13.

Mutuality of remedy does not apply here because specific performance is not an issue. Adams, 254 S.W.2d at 80; Langley, 173 S.W.2d at 458. That a private citizen must get permission to sue the State for breach of contract has never rendered a State contract illusory in Texas. See W.D. Haden & Co., 308 S.W.2d at 842. “The impotence of private individuals to enforce through the courts their contractual rights against the State, by reason of inability to sue the State without its consent, inheres in every such contract. This impotence, however, does not affect the binding force of State obligations; nor does it deprive the Legislature of the power to delegate to an appropriate agency authority to create binding contractual obligations against the State.” Ferguson v. Johnson, 57 S.W.2d 372, 376 (Tex.Civ.App.—Austin 1933, writ dism’d). Secondly, Federal Sign actually has a remedy against TSU — it may sue and recover its damages, if it first obtains legislative permission to do so. See generally Tex. Civ. Prac. & Rem.Code §§ 107.001-.005. Therefore, the court of appeals correctly held that a valid and binding contract existed between Federal Sign and TSU.

C. Legislative Control Of Sovereign Immunity

Lastly, Federal Sign asks this Court to pronounce that sovereign immunity does not preclude private citizens from suing the State for breach of contract. Litigants have repeatedly asked this Court to abrogate one or more aspects of the State’s sovereign immunity. However, this Court has uniformly held that it is the Legislature’s sole province to waive or abrogate sovereign immunity. See Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex.), cert. denied, 510 U.S. 820, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993); Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); See also Greenhill, Should Governmental Immunity for Torts be Re-Examined, and, If So, by Whom? 31 Tex. B.J. 1036, 1070 (1968). Today, we again hold that it is the Legislature’s province to modify sovereign immunity if it is inclined to do so and therefore refuse Federal Sign’s invitation to undertake that task.

IV. OPEN COURTS AND DUE COURSE OF LAW VIOLATIONS

Federal Sign asserts that if sovereign immunity precludes its breach of contract claim, then applying sovereign immunity violates the Texas Constitution’s Open Courts and Due Course of Law Clauses.

Initially, we note that Federal Sign only cited authority supporting its Open Courts argument. TSU argues that Federal Sign waived any Due Course arguments because it did not cite supporting authority for that argument. We agree that ordinarily failure to brief an argument waives the claimed error. See Tex.R.App. P. 74(f); Fredonia State Bank v. American Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex.1994). However, when fact issues are not germane to the issue on appeal, and the issue is a law question involving constitutional ramifications, we believe the reviewing court should decide the issue on the merits because of the importance to the issue to the State’s jurisprudence. See Williams v. Khalaf, 802 S.W.2d 651, 658-59 (Tex.1990). Accordingly, we discuss Federal Sign’s Open Courts and Due Course of Law claims.

A. Open Courts

The Open Courts provision provides that “[a]ll courts shall be open, and every person for any injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const. art. I, § 13. The Open Courts provision affords three distinct protections. First, courts must actually be open and operating. See Runge & Co. v. Wyatt, 25 Tex.Supp. 291 (1860). Second, citizens must have access to the courts unimpeded by unreasonable financial barriers. See LeCroy v. Hanlon, 713 S.W.2d 335, 342 (Tex.1986). Third, our law must afford meaningful legal remedies to our citizens, so the Legislature may not abrogate the right to assert a well-established common law cause of action. Texas Ass’n of Bus. v. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355-357 (Tex.1990). The Open Courts provision “applies only to statutory restrictions of a cognizable common law cause of action.” Peeler v. Hughes & Luce, 909 S.W.2d 494, 499 (Tex.1995); Moreno, 787 S.W.2d at 355-56.

Federal Sign’s Open Courts argument implicates the provision’s third guarantee — whether sovereign immunity unconstitutionally deprived Federal Sign of a meaningful legal remedy. Federal Sign complains that this Court, by upholding established sovereign immunity law, would violate the Open Courts provision. Federal Sign does not complain of any legislative action that prevents it from maintaining its suit. Because Federal Sign does not challenge a legislative act that abridges a cognizable common law claim, its Open Courts challenge is without merit. See Peeler, 909 S.W.2d at 499.

B. Due Course of Law

In its brief, Federal Sign argues that the court of appeals’ opinion, as applied to the facts in this case, denies Federal Sign its rights under the Due Course of Law provision of our constitution. Federal Sign’s assertion is that the doctrine of sovereign immunity from suit denies Federal Sign its remedy under the Due Course of Law provision.

Our Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disinfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19. Due course of law exists to prevent government from depriving persons of property without notice and hearing. See Nelson v. Clements, 831 S.W.2d 587, 589 (Tex.App.—Austin 1992, writ denied). A claim of denial of due course of law is a question of law for the Court’s determination. Nelson, 831 S.W.2d at 590.

This Court has never directly decided whether requiring legislative consent to sue on a breach of contract in order to waive sovereign immunity to sue is or is not a denial of due course of law under the Texas Constitution. However, decisions interpreting the United States Constitution are instructive and we turn the United States Supreme Court’s decisions for guidance in applying the Due Course of Law’s guarantees under the Texas Constitution.

The United States Supreme Court has held that where Congress, by statute, had expressly granted beneficiaries of insurance policies permission to sue the United States for benefits, but a subsequent statute repealed all laws granting or pertaining to the insurance that Congress could not repudiate the contract, but it could withdraw consent to the suit. See Lynch v. United States, 292 U.S. 571, 580-82, 54 S.Ct. 840, 844, 78 L.Ed. 1434 (1934). In Lynch, beneficiaries of insurance policies issued under a federal statute sued for benefits. The statute as originally passed granted the beneficiaries the right to sue the United States for benefits. A later statute repealed all laws pertaining to the insurance policies. The Supreme Court held:

Contracts between individuals or corporations are impaired within the meaning of the Constitution whenever the right to enforce them by legal process is taken away or materially lessened. A different rule prevails in respect to contracts of sovereigns. The contracts between a Nation and an individual are only binding on the conscience of the sovereign and have no intentions of compulsive force. They conferred no right of action independent of the sovereign will. The rule that the United States may not be sued without its consent is all embracing.

* * * * * *

Although consent to sue was thus given when the policy issued, Congress retained power to withdraw the consent at any time. For consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration. The sovereign’s immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced.

Lynch, 292 U.S. at 580-82, 54 S.Ct. at 844 (citations omitted).

The Court then held that Congress, merely by repudiating its contractual obligation had not withdrawn consent to suit and that it had not done so otherwise. Lynch, 292 U.S. at 582, 585-87, 54 S.Ct. at 844, 846-47. Under those circumstances, the Court allowed the plaintiffs to sue for benefits.

In another case involving gold bonds, a bondholder sued the United States as obligor for payment in gold coin as required by the bond’s terms rather than in currency as required by a statute passed after the bond issued. See Perry v. United States, 294 U.S. 330, 346-47, 55 S.Ct. 432, 433, 79 L.Ed. 912 (1935). Chief Justice Hughes’ plurality opinion observed that the United States does not, by executing a contract, consent to be sued for its breach. The Court held:

When the United States with constitutional authority makes contracts, it has rights and incurs responsibilities similar to those of individuals who are parties to such instruments. There is no difference, except the United States cannot be sued without its consent.

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The fact that the United States may not be sued without its consent is a matter of procedure which does not affect the legal and binding character of its contracts. While the Congress is under no duty to provide remedies to the courts, the contractual obligation still exists and, despite infirmities of procedure, remains binding upon the conscience of the sovereign.

Perry, 294 U.S. at 352-54, 55 S.Ct. at 435-36 (citations omitted). The Supreme Court has recently cited both Lynch and Perry with approval. See United States v. Winstar Corp., — U.S. -, -, 116 S.Ct. 2432, 2455, 135 L.Ed.2d 964 (1996).

We believe we should reach the same conclusion under our State Constitution. The State’s immunity to suit is, purely as a matter of sovereignty, impervious to due process concerns. Moreover, a party contracting with the State is not denied all process, or even due process, but only judicial process.

Federal Sign, as with any other who contracts with the State, has a remedy— it may seek the Legislature’s consent to sue. Our Constitution’s guarantee of due course of the law does not obligate the State to provide judicial relief from all its actions. It may retain for itself, through its Legislature, the exclusive power to determine its liabilities, bound by its conscience. Our Legislature has provided the procedure for consent to sue the State. See Tex. Civ. Prac. & Rem. Code, §§ 107.001-005. Federal Sign chose not to avail itself of such relief. We conclude the legislative procedures provide sufficient relief and do not deny constitutional due course of law guarantees. Accordingly, we reject Federal’s arguments that TSU’s sovereign immunity from suit denies it due course of law.

y. CONCLUSION

Absent legislative permission to proceed, sovereign immunity precludes Federal Sign’s breach of contract suit against TSU. We expressly disapprove of any court of appeals’ cases holding to the contrary. We hold that when a contract exists between the State and a private citizen, the same law applies to the State as governs the individual’s contract. We hold that sovereign immunity from suit without legislative consent applies to contract claims against the State. We hold that applying sovereign immunity from suit to contract claims against the State does not violate either the Open Courts Provision or the Due Course of Law Provision of the Texas Constitution. We hold that it is the Legislature’s province to modify, if at all, the sovereign immunity doctrine. Accordingly, we affirm the court of appeals’ judgment.

1 . We hasten to observe that neither this case nor the ones on which it relies should be read too broadly. We do not attempt to decide this issue in any other circumstances other than the one before us today. There may be other circumstances where the State may waive its immunity by conduct other than simply executing a contract so that it is not always immune from suit when it contracts.