Sovereign immunity

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Sovereign immunity is the doctrine that the government, state or federal, is immune to lawsuit unless it give its consent. Sovereign immunity is waived only when the legislature has clearly and unambiguously expressed that intent. When there is sovereign immunity, then even state courts lack subject matter jurisdiction to consider a case or controversy.

Sovereign immunity is based on the traditional view from England that "the King can do no wrong."

Sovereign immunity does not typically protect state or local governments when they act in a proprietary or business-like manner.

States compared

Sovereign immunity is broader in some states than others. Texas has long had a broad version of sovereign immunity which requires, in most cases, express consent by the state before it can even be sued. "A lack of immunity may hamper governmental functions by requiring tax resources to be used for defending lawsuits ... rather than using those resources for their intended purposes," City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (quoting Reata Constr. Corp., 197 S.W.3d at 375).


In Hayes v. Williamsville Cent. School Dist., (W.D.N.Y. 2007), a federal court held that the New York State Education Department had Eleventh Amendment immunity from some but not all claims asserted by a parent and student. The Department enjoyed immunity for alleged violations of the Americans with Disabilities Act, the Family Educational Rights and Privacy Act, and Section 1983. It did not have immunity under the Rehabilitation Act or Title VI of the Civil Rights Act, to the extent that those claims sought compensatory damages.

In Fowler v. Tyler Independent School Dist., (Tex.App.-Tyler 2007), an independent public school district that provided the venue for a high school football playoff game was a purely governmental agency. It exercised only such powers that the State delegated to it. It was not acting in a sufficiently proprietary capacity to lose its sovereign immunity and be liable for a fan who slipped and fell at a game.