TEXAS a & M UNIVERSITY v. Bading

236 S.W.3d 801, 2007 Tex. App. LEXIS 9034, 2007 WL 2325612

• Court: Court of Appeals of Texas
• Decided: November 14, 2007
• Docket: 10-05-00139-CV
• Status: Published

Opinions

OPINION

BILL VANCE, Justice.

In 1999, the annual bonfire being built by students at Texas A & M University collapsed, killing 12 students and injuring 27 others. Several plaintiffs, including estates of students, injured survivors, and relatives of affected students, sued the Texas Aggie Bonfire Committee, Scott-Macon, Ltd., Zachry Construction Corporation and related parties (all collectively referred to as “Appellees”), and other defendants for wrongful death, personal injury, and related claims. Appel-lees in turn brought certain claims against Texas A & M University, a state entity, which filed pleas to the jurisdiction based on sovereign immunity. When the trial court denied its pleas, the University brought this interlocutory appeal. Tex Civ. PRAc. & Rem.Code Ann. § 51.014(8) (Vernon Supp.2006).

We review de novo the trial court’s denial of a plea to the jurisdiction based on sovereign immunity, as the question of whether a court has subject matter jurisdiction is one of law. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004) (per curiam); see also Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-28 (Tex.2004).

The claims against the University can be divided into three general categories: those seeking contribution and/or indemnity; those seeking a finding of proportionate responsibility under Chapter 33 of the Civil Practice and Remedies Code;¹ and those founded in contract. The University maintains that it is immune from each category of claims. Specifically, it says that the Appellees cannot point to a legislative enactment providing a clear and unambiguous expression of a waiver of sovereign immunity as to any of the claims. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695-96 (Tex.2003). We agree with the University.

The Attorney General has amply demonstrated in the briefs, and supported in oral argument, the proposition that because there is no statute or resolution of the Legislature authorizing them, the doctrine of sovereign immunity bars all of the Ap-pellees’ claims, whether for contribution, indemnity, a determination of proportionate responsibility, or based in contract.

We sustain the University’s issues and reverse the trial court’s order. We render an order granting the University’s pleas to the jurisdiction and dismissing all of Ap-pellees’ trial-court claims against the University for lack of jurisdiction. Costs of the appeal are assessed against and shall be paid as follows: 50% by Zachry Construction Corporation, 25% by the Texas Aggie Bonfire Committee, and 25% by Scott-Macon, Ltd.

SPECIAL NOTE

TOM GRAY, Chief Justice.

A majority of this Court has adopted a set of procedures under which they will issue an opinion as a unanimous opinion upon the vote of only two of the three duly elected justices of this Court. By this process, they have taken it upon themselves to alter the plan for justice set up in the Constitution, Statutes, and Rules enacted by, and secured by, our founders, the voters, the legislature, and the members of this State’s two highest courts. Two, acting as one, have altered the process of judicial review. It is wrong on many levels.

Discussion

The failure to allow me the time that I need to review a particular decision has occurred sporadically over the last several years, all subsequent to the most recent recomposition of the Court in 2003. No useful purpose will be served to rehash what I have said before, but if the reader is interested, the following is the litany of citations on the issue. Texas Dep’t of Transp. v. York, 234 S.W.3d 212 (Tex.App.-Waco 2007, no pet. h.) (Special Note by Chief Justice Gray issued Aug. 9, 2007) (publish) (no LEXIS citation for the Special Note as of this date); Johnson v. Baylor Univ., 188 S.W.3d 296, 311-312 (Tex.App.-Waco 2006, pet. denied) (Special Note by Chief Justice Gray); Jones v. State, 188 S.W.3d 737, 738-739 (Tex.App.Waco 2006, no pet.) (Special Note by Chief Justice Gray); Tex. Genco, LP v. Valence Operating Co., 187 S.W.3d 118, 125-126 (Tex.App.-Waco 2006, pet. denied) (Special Note by Chief Justice Gray issued Jan. 25, 2006); Tesmec USA, Inc. v. Whittington, No. 10-04-00301-CV, 2006 WL 827849, at *10, 2006 Tex.App. LEXIS 748, *30-31 (Tex.App.-Waco Jan. 18, 2006, pet denied.) (Special Note by Chief Justice Gray issued Jan. 25, 2006); Park v. Montgomery County, No. 10-04-00231-CV, 2005 WL 2667488, at *3, 2005 Tex-App. LEXIS 8646, *1-2 (Tex.App.-Waco Oct. 19, 2005, pet. granted) (Special Note by Chief Justice Gray); Pac. Emplrs. Ins. Co. v. Mathison, No. 10-04-00314-CV, 2005 WL 2665454, at *3, 2005 Tex.App. LEXIS 8650, *1-2 (Tex.App.-Waco Oct. 19, 2005, pet. denied) (Special Note by Chief Justice Gray); Krumnow v. Krumnow, 174 S.W.3d 820, 830-842 (Tex.App.-Waco 2005, pet. denied) (Special Note by Chief Justice Gray issued Aug. 31, 2005).

All the prior notes have one thing in common; the majority utilized internal operating procedures they had passed as the justification for what they were doing. This one is, in my opinion, different. Although they will pay lip service to the application of the procedures, the only procedure they are following is that a majority can “modify” the procedures, which should be read as “ignore” the procedures, if they decide to do so.

While I was not exactly shocked when they decided to issue their opinion in this proceeding without compliance with the standard procedures under their circulation policy, I was surprised they contend it was in any way in compliance with that policy. What this means is that the procedure necessary to issue an opinion, as a unanimous opinion, is whatever a majority votes it to be at any given time. I cannot accept that as being the proper way to decide a proceeding presented to us for review.

My response to the majority draft has been and continues to be “I am not yet ready to vote.” They were not satisfied with this response so they voted to issue their opinion, representing that it was a unanimous opinion. That representation is not accurate.

The parties and others, under these circumstances, are, however, entitled to know why I am not yet ready to vote. There are a number of factors which came together to cause this delay. While I will not try to discuss all of them, or even to list them, one factor was the press of other work. I have publicly noted that Justice Reyna had an inordinate number of cases pending that needed to be resolved. Newton v. State, — S.W.3d -, -, No. 10-06-00160-CR, 2007 WL 1704904, at *7, 2007 Tex-App. LEXIS 4634, *19 (Tex.App.Waco June 13, 2007, no pet. h.) (publish). Thus, in the exercise of my discretion, I felt it was more important to continue to process everything from his chamber that I could without delay.

In essence, I focused on the number of dispositions and not the order in which we received them or in which they were presented to me. Justice Reyna has made significant strides since that date to reduce his backlog of cases, posting the most dispositions for any chamber at this Court in each of the last two months. Because Justice Vance also had more cases pending than I did, and because I had also been suggesting to him that we needed to do what we could to improve our overall disposition of cases, I likewise continued to process his cases and other matters as quickly as I could.

Then why not expedite the processing of this case and Texas Department of Transportation v. York, 234 S.W.3d 212 (Tex.App.-Waco 2007, no pet. h.) (Special Note by Chief Justice Gray issued Aug. 9, 2007) (publish) (no LEXIS citation for the Special Note as of this date).

This case and Texas Department of Transportation v. York were both argued on June 6, 2007. Draft opinions were subsequently presented to me for review. I had already spent a good deal more time with Texas A & M University v. Bading than I had with Texas Department of Transportation v. York. But with both drafts on my desk for review, and both involving the issue of sovereign immunity, there were issues that I identified that I felt were worthy of considerable research, thought, and reflection; considerably more than I had given either until I saw them presented together in draft opinion form.

It was at that point that I realized I had a scheduling problem. There are a number of priorities, some conflicting, for the disposition of cases as well as other demands on a judge’s time. See Cathey v. Meyer, 115 S.W.3d 644, 673-674 (Tex.App.Waco 2003) (Gray, J., dissenting), rev’d in part and aff'd in part, Meyer v. Cathey, 167 S.W.3d 327 (Tex.2005). But the complexity of what I needed to resolve before I decided how to vote in these two sovereign immunity cases, both of which were drafted as precedent-setting opinions, required more time than I had available under the procedures adopted by the majority, unless I was willing to ignore everything else, including several termination of parental rights cases. I was not. But even then, these are two cases that involve some pretty broad concepts and the need for judicial reflection that simply cannot be put on the deadline of a calendar with a specific date.

In fact, one of the complexities that hit me with regard to the opinion in this proceeding is the summary nature of the opinion, completely passing over a discussion of a number of issues raised by the parties in their briefs. Thus it appears, in what would under any other circumstance be a memorandum opinion, the majority is purporting to establish some precedential decision. I wanted to investigate further exactly what the scope was of the precedent we were purporting to establish.

But knowing what may come, I did what I believe is within my discretion, and worked on the cases in the manner and under the priorities I thought was appropriate. Because the research and writing that I was doing in Texas Department of Transportation v. York was assisting me in grappling with the issues in this case, and because the draft in this case had not been circulated under the deadlines and restrictive due dates of the circulation procedure, until very recently I thought I had more time before the opinion in this case would be issued. And notwithstanding that this case is an accelerated appeal but also recognizing that there are other pending appeals that will prevent an underlying trial on the merits, I chose to work on Texas Department of Transportation v. York first.

The status of my draft and, to some extent, the status of my research in Texas Department of Transportation v. York is reflected in the Appendix to my Special Note in that proceeding. Texas Dep’t of Transp. v. York, 234 S.W.3d 212 (Tex; App.-Waco 2007, no pet. h.) (Special Note by Chief Justice Gray issued Aug. 9, 2007) (publish) (no LEXIS citation for the Special Note as of this date).

And it is more than a simple vote on whether I agree or disagree with a result. I believe I have the right to vote on the reasons for a result. Who knows, I may actually convince one of the other justices to flip and join me in a different result, or possibly the same result but for an entirely different precedent-setting reason. Such is the nature of a well thought out decision by a three judge panel rather than rushing it out the door while there is at least one justice who joins the vote at a particular point in time. If that was acceptable, why have three votes on anything? A justice could say: “Let me get just one vote to join me and issue it, even call it unanimous.” A court could really expedite “justice” if that was acceptable. One theory on why to proceed in the fashion chosen by the majority is to prevent the potential for a justice to change his mind on the result, or the basis of his decision, when confronted by an alternate analysis from the third justice.

Conclusion

So, here we are in another of a handful of proceedings, with the majority issuing an opinion before I am ready to vote. I think it is a bad procedure, but I am unable to prevent it. I apologize to the parties, the bench, the bar, the public, and the higher courts that I was unable to complete the analysis of the majority opinion that I would have liked to do. I had the best of intentions. It will have to suffice that I am not yet ready to vote, but I know that I do not join the majority in their purported unanimous precedent-setting opinion and the procedure which led to its issuance as such.

1 . The parties agree that the claims asserted here are governed by the 1995 version of section 33.004, which was amended in 2003. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.004, 1995 Tex. Gen. Laws 971, 972-73 (amended 2003) (current version at Tex. Civ. Prac. ⅛ Rem.Code Ann. § 33.004 (Vernon Supp.2006)). The 1995 version permitted a determination of percentage of responsibility only for parties who were joined in the case or had settled, whereas the current version permits that determination without the party being joined. The University was joined as a party.