Helen Lavonne Wells, Marie R. Moore, Nelda L. Harrison and Jane A. Sloan v. Texas A&M University System d/b/a Texas A&M University-Commerce, Texas A&M University-Commerce, and Dr. Keith McFarland, President of Texas A&M University Commerce--Appeal from 196th District Court of Hunt County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00001-CV

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HELEN LAVONNE WELLS, MARIE R. MOORE,

NELDA L. HARRISON AND JANE A. SLOAN, Appellants

V.

TEXAS A&M UNIVERSITY SYSTEM D/B/A TEXAS A&M UNIVERSITY-COMMERCE, TEXAS A&M UNIVERSITY-COMMERCE,

AND DR. KEITH MCFARLAND, PRESIDENT OF

TEXAS A&M UNIVERSITY COMMERCE, Appellees

On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 65,080

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Four former "house mothers" // employed by Texas A&M University Commerce // claim the School did not pay them overtime wages as required by both the federal Fair Labor Standards Act, 29 U.S.C.A. 201 219 (West 1998) (the "Act"), and the School's own expressed policy that it comply with the Act. The trial court dismissed for want of jurisdiction, concluding that the School was an arm of the State, // that the State had not consented to be sued by private individuals in this situation, and that therefore the School was immune from this suit. Plaintiffs claim that sovereign immunity was waived by the School's policies and manuals, which had been approved by the School's governing board (the "Board"). We affirm.

As pointed out by the School, the United States Supreme Court has held that the Act is unconstitutional to the extent it provides that private actions may be brought against states or their political subdivisions, such as the School. Alden v. Maine, 527 U.S. 706, 754 (1999). Therefore, before such an action may be pursued, consent to the action must be provided by either statute or legislative resolution. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).

As this Court has very recently recognized, it is the Legislature's sole province to waive or abrogate sovereign immunity, // and any waiver must be expressed clearly and unambiguously. Tex. Nat'l Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 54 (Tex. 2002); City of Texarkana v. City of New Boston, No. 06-04-00023-CV, 2004 WL 1665012 (Tex. App. Texarkana July 23, 2004, no pet. h.).

In this case, Plaintiffs argue that language found in school employment policy manuals, and in posters and other communications by the School to its employees, serves to waive sovereign immunity. In general, they contain language referring to the Act and documenting the Board's policy to comply with state and federal laws at all times, and use definitions and statements from the Act to describe the requirements of their employment system. For example, portions of the School's policy manual state that the School is to comply with the Act and related federal and state laws, and that an employee's rights under the Act may not be waived. The School's system regulations provide that, "No employee may agree, even voluntarily, to work in violation of the [Act]."

Essentially, Plaintiffs argue that the Board, by its conduct, has waived sovereign immunity for employee claims under the Act. There is, however, no authority to support the position that the Board had the right to act in place of the Legislature in this context. Decisions to waive immunity are properly made by the branch of government to which the Constitution entrusts the obligation. Taylor, 106 S.W.3d at 695.

Even if there was authority that the Board had the power to waive immunity, the fact that the Board chose to implement its employment practices in line with federal requirements is not equivalent to an explicit agreement to waive sovereign immunity. In parallel situations, express consent is required to show that immunity from a breach of contract suit has been waived. See Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). In all such cases, legislative consent for suit or any other sovereign immunity waiver must be "by clear and unambiguous language." Tex. Gov't Code Ann. 311.034 (Vernon Supp. 2004 2005); Pelzel, 77 S.W.3d at 248; Fed. Sign, 951 S.W.2d at 405. When determining whether there is a clear and unambiguous waiver of immunity from suit, we generally resolve any ambiguity in favor of retaining immunity. See Taylor, 106 S.W.3d at 697.

Nothing suggests the Legislature either has authority to delegate, or has delegated, to the School or its Board the power to waive sovereign immunity. There is also nothing to show that, even had such delegation occurred, the School waived immunity by clear and unambiguous language. We conclude the trial court properly granted the motion to dismiss.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 12, 2004

Date Decided: September 24, 2004