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Texas Governmental Tort Immunity

Wed, 04 Jun 2014
Published in Articles

Immunity prevents a state or person employed by the state government from being subjected to suit without its consent.

The doctrine of Sovereign Immunity stands for the principle that a nation is immune from suit in the courts of another country. At first, courts espoused a theory that provided absolute immunity from the jurisdiction of a U.S. court for any act by a foreign state. But beginning in the early 1900s, courts relied on the political branches of government to define the breadth and limits of Immunity.

Indian tribes have been granted immunity status by the United States, and therefore they generally cannot be sued without the consent of either Congress or the tribe. This immunity is justified by two considerations: First, historically, with more limited resources and tax bases than other governments, Indian tribes generally are more vulnerable in lawsuits than are other governments. Second, granting Indian tribes are immune from suit whether they are acting in a governmental or a proprietary capacity, and immunity is not limited to acts conducted within a reservation. However, individual members of a tribe do not receive immunity for their acts; only the tribe itself is immune as an Immunity nation.

Governmental Tort Immunity

Immunity may also apply to federal, state, and local governments within the United States, protecting these governments from being sued without their consent. The idea behind domestic Immunity immunity—also called governmental tort immunity—is to prevent money judgments against the government; as such judgments would have to be paid with taxpayers' dollars.

As an example, Mary, a private citizen, who is injured by John, another private citizen, who runs a red light may sue the other driver for their negligence under tort. But under a strict Immunity doctrine, a private citizen who is injured by a city employee driving a city bus has no cause of action against the city unless the city, by ordinance, specifically allows such a suit.

Most states and local governments have similar statutes. Courts and legislatures in many states have either restricted or abolished the doctrine of governmental tort immunity. Governmental entities are generally shielded from liability by “sovereign immunity”.  In order to hold a protected governmental entity accountable, a waiver of this immunity is necessary.  This post deals with governmental tort liability.  A separate analysis must be done for governmental contractual liability.

Texas Tort Claims Act

In Texas, Sec. 101.02 of The Texas Tort Claims Act provides a waiver and permission to sue Texas Governmental units - the State of Texas and all the several agencies of government that collectively constitute the government of Texas as well as the political subdivisions of Texas.  However, the waiver is not unlimited:

Sec. 101.021. Governmental Liability. A governmental unit in the state is liable for:

  • (1)  property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
  • (A)  the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
  • (B)  the employee would be personally liable to the claimant according to Texas law; and
  • (2)  personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

As you can see, the waiver is generally limited to the operation or use of a motor-driven vehicle or motor-driven equipment and a condition or use of tangible personal or real property.

Additionally, the Act limits the amount of recovery in those situations that fall within the waiver.

The Act must be studied with an eye toward the type of governmental entity that caused the harm.  There is a waiver with regard to school districts to motor vehicles. It is very important to pay attention to the Notice requirements of the Act:

NOTICE. (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

  • (1)  the damage or injury claimed;
  • (2)  the time and place of the incident; and
  • (3)  the incident.
  • (b)  A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.
  • (c)  The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.

One cannot assume that the Notice must be sent within six months.  There may be a city charter and ordinance requiring notice in a shorter time.   In summary, there are limited situations where the Texas Tort Claims Act waives immunity, the Act must be examined closely for a particular fact scenario and special care must be taken to satisfy the Notice requirements.


Municipalities fall within the Texas Tort Claims Act, but have their own considerations. 

Liability of a Municipality separates the functions of a municipality into its governmental functions and its proprietary functions.  The governmental functions are those “enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty…” and are covered by the Act.  On the other hand, proprietary functions, those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality, are not covered by the Act; and a municipality is not immune from suit for torts committed in the performance of its proprietary functions.

How does your state apply immunity? We would like to know. Send to This email address is being protected from spambots. You need JavaScript enabled to view it. .


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