president of texas southwest college dr sarah had a three year employment agreement that included a clause that allowed the college to terminate her even without cause but if it did so without cause it would be obligated to pay her the remaining three years of salary as the court knows from the briefing t s a t c took a very different path in aug th st it quite publicly accused dr  dishonesty criminality and professional misconduct culminating in a hearing the following month that the jury found at trial the district court upheld from a post judgment challenge and is not challenge on appeal was constitutionally insufficient to satisfy due process so dr jasser had gone to trial on a breach of contract claim seeking her salary and a due process claim seeking those damages and i plan to cover those two issues in that order beginning with the reason the district court for dismissal of the contract claim after a trial which was its invocation of the th to mimic sovereign immunity and we have an unusual situation in the immunity issue in this case because the believe is defending the district court's dismissal in a different basis than the district court advance so i may be covering two sets of ground here but both sides both sides also agree that c would never have had substantive and unity from y ability under texas law because texas is not a for immunity from liability for contract actions and this is a contract immunity and one point they refer to it as a retained immunity from suit as we've briefed to see the position on this is contrary to what we think the basic principles are immunity from suit in federal court that have been settled in the circuit at least since myers versus texas and from the supreme court's guidance and all them vs maine or northern insurance company versus chatham county and so in some ways this is a difficult question to discuss immunity that predated the enactment of the constitution and the courts have referred to that as the th amendment as a way to talk about the federal interest in the way the federal government federal courts protect that preexisting state law immunity  as the supreme court has held and as this court has recognized there is not a distinct where taint immunity that is exists outside of the th amendment that would allow that again or a local government entity to bypass the basic the dignity afforded to states and eleven the moment to be able to invoke it is not an arm of the state and the terminology that this court has used as we've now as we've noted it is a junior college district in texas which is a particular kind of local government that the court has in some cases said that is deport must go through the analysis of looking at whether a entity is an arm of the state and we think that doesn't apply for two reasons the st is most important is that he has not put it into dispute in this case to the extent that and also factual issues c s e conceded in its pleadings and it's never put in to these facts and the nd reason is that this court does happen on point precedent and they hand her case and c s e has not advanced a reason why this court should depart from its own clear precedent about a junior college district on the immunity question t f c points to two things that may be tensions in the law i want to briefly discuss one is this question of the case through exemplified by morgan versus plano independent school district situations where this court has looked to texas law to see if there is an immunity from suit as part of its analysis of whether to use the collateral order doctoring to allow an interlocutory appeal and i think that the right way to understand these cases is looking at the substance of texas law to see if texas laws protecting  litigant interest in being hailed to court or having to answer discovery or to just to even answer for a claim on its merits these are not aspects of texas law in which the state is trying to put its finger on the scale for forum selection to pick one court over another which is the classic kind of procedural issue protected by federal immunity from suit that this court and the u s supreme court upheld is a federal question subject to federal law government code that a number of district courts have cited in suggesting that a local government entity like this would have immunity from suit in federal court against a breach of contract claim we pointed to a district court that held the opposite after analyzing th and that issue in my preparations for argument i found others on both sides of the us it is a perfect sort of question that is if that is in the district courts where some of them point to the statute in suggest that it is a basis for a lower energy to get out of being held into federal court none of those courts that i've seen that say that discussed the principles of the th amendment discuss miers for this court's authority but immunity from suit in decided as a federal question under federal law and so we are suggestions that they are simply misreading the effect of this that the statute should be seen by the court as similar to the louisiana statute that was an issue and united disaster response and in re allied signal that that a state cannot by statute effectively vest th i'm an immunity and a local government entity that would not otherwise have that immunity and does that then i'm sorry counsel it is within the state's power to determine the circumstances under which it's going to waive puttin in them you whatever kind of immunity it is obviously they can waive it or reserve it and the text of this particular provision plainly says that they do not want the waiver to apply to breach of contract suits in federal court and they be the state legislature that they do their two aspects that answer your honor the st says to the extent this statute applies to an entity that is an arm of the state then the meaning of the statute is that the statute is not a legislative waiver of that th amendment immunity we think the correct reading of united disaster response and the principles there and of that to the extent of that it would apply to something that is not an arm of the state that does not already have a preexisting with need to be waived that it would not in the hands of a court and that's how we would reconcile those two so we're giving some of some meaning to the statute it has some flints on at this point what would be an example of an arm of the state would be covered by this provision in chapter two hundred and sixty one dollars because i'm trying to think of the circumstances under which you could be both an arm of the state and also subject to the local government i'm not sure of a good example your honor and i know that this court in the clark factors has six factors it sets out to analyze only one of which would be looking at a statute like this so under the car test it's possible for this court to reach a different answer about whether something is an arm of the state of the law of the met then texas has for its own local purposes we have a favorable jury verdict a liability the district court rejected the post judgment challenge as there is no cross appeal or even cross issue that would challenge that district court's only rationale for  entering nominal damages was a conclusion that there was not evidence of causation and we believe that this was applying too high a standard to too narrow a time period of the events in the case and one way to think about this is to ask you know to what sorts of events in the timeline do the damages in this case have to be anchored useful to think about caused damages would be enough to defeat our claim but we think we read most immerses taylor as applying a normal causation type standard that we have to show that this violation contributed to the damage is is where the timeline comes into play here are what the evidence we developed was that damages that flowed from these public accusations being made of minute of professional misconduct dishonesty and crimin or which she never received a constitutionally sufficient hearing and a useful way to think about that is what if there had been not even this sham hearing but no hearing at all it would be very clear where you were at anchor the causation you would look at those accusations for which she never had a sufficient chance to answer them and look to see whether there is harm from those here they provided a constitutionally insufficient hearing that's determined  and what the district court has done effectively is let the district use a constitutionally insufficient hearing to absolve itself from those damages and now we look at the cases that are relied on the  knock and the wilson versus taylor and there's a distinction when there is never a sufficient hearing given as opposed to when there is a nd later submission hearing get it when there's a nd hearing when there is some hearing that is sufficient the court narrows down the time period and looks for the gap but in this case there was never a sufficient hearing dr jasser has never had that constitutionally sufficient moon floppers unity to respond so we have evidence of her her reactions in the damage caused by the accusations we have evidence that in her discussions with with future prospective employers they not only discusses accusations but the hearing  accusations i think her testimony does say so the accusations and the hearing i don't know the timing of when she became a finalist or when they discovered the hearing the people who are interviewing her are because i guess i think me if she never would have become a finalist i knew about the accusations and that's the reason they hired her and she and or her she gave five i and i think i think what you're saying your honor is correct i don't think she would be a today the district court's final decision should be affirmed because it correctly decided that college was entitle to governmental immunity from suit as to the breach on track climb and correctly found that there was no evidence of causation of damages that was the texas local government it is the local government code for a reason because it applies to local government entities and state of texas and by statute that encompasses public school districts and junior college histories so we know that this statute was designed minimum unity rather they rest exclusively on state law immunity to a state law claim this court has routinely recognized texas governmental immunity jurisprudence binding governmental immunity contains two strands severus brave she argues that the statute doesn't confer immunity it doesn't expand immunity and then the texas legislature is in fact waived immunity urges on track lines that's true to a point the texas supreme court has on at least two occasions noted that the waiver immunity only applies to certain breach of contract claims and that those breach of contract claims must meet each of the conditions of the chapter the waiver provision provides that the waiver responses and whether we stay in that case i use where they're at with the conclusion you're asking us to reach here yes your honor united disaster response in the st instance didn't involve question of immunity at all it was a state statute that was attempted to create a form selection clause drilling down on the authority louisiana had abolished the concept of common law and unity both by its constitution and by statute this is laid out in our briefs the case didn't involve question of immunity at all  one united disaster now it signaled to not vote unity at all because louisiana had long since abrogated its own you're the nd this case is not a diversity jurisdiction case the supplemental jurisdiction the concerns the court articulated about for united disaster a critical aspect is that has waived common law unity here texas is where common law in unity to breach of contract claims subject to the conditions that the legislature isn't and critical to this case the condition that there is no way or immunity and federal or the texas legislature obviously to care in crafting this statute as a way to meet the purposes underlying state government unity which is to protect the public statute otherwise important would all litigants who choose to enter into a contract with a local governmental entity are in the same position they're in a ring into a contract that will only be enforceable in texas state or it would be no different if i understand his position t f c would be a minimal to suit in state court for breach of contract claim because there would be no what i would call state sovereign immunity right the that is the immunity would normally apply as a matter normally what we would do when we see a state law claim that arises in diversity whether it's in whether it's under one thousand three hundred and thirty two dollars or supplemental jurisdiction in this case as we try to figure out how the state courts would treat this claim and it seems undisputed that the state courts would treat this claim by making t f c amenable to suit and making to yes you minimal i'm sorry you're liable for money damages for the breach of contract i'm not sure i understand what would give the texas legislature power to extend the water non constitutional arm of the state in federal court but what would be the best case that would suggest that could ever be done certainly so st before getting to the case i agree with your your some nation that a texas court would have jurisdiction over a bridge of contract lying under the facts of this case with respect to the texas legislature in doing an immunity so that that's actually not quite the the correct framing so under texas law and it goes back to one of the very st texas supreme court cases posner versus de young decided i think in a team forty six or eight hundred and forty seven the state recognized as a common law that governmental entities were immune from suit as to all claims so this is not a situation where the legislature has created in it is a situation where the state as part of its substantive law the starting point is you cannot sue the government absent a clear statutory waiver suit that's part and parcel of a breach of contract claim or tort claim in the state of texas it's not a statutory an act meant that expands the scope of immunity properly understood section so chapter i i is a waiver of immunity that is part and parcel of any any contract action so it's not a question of the state extending immunity to a government on well before we get off the extending point is there any doubt that but four to seven chapter two hundred and seventy one of the local government code that dr line there was under supplemental jurisdiction a statutory d climb under the texas religious freedom restoration act through the course of many appeals d to this or that federal constitutional claims were went out down and same regardless of whether the point of sued in state or federal court on the state law clearly right whereas here your results are i should say doctor to serious result on the your theory is diametrically opposite based on her choice of for the same result would not obtain here i think this is the st time this court has wrestled with this type of question because it's a fairly unique statute in that it it has a gradated waiver of immunity  most waivers of immunity under texas law are complete that there is a waiver unity as to the cause of action here though well i can't point the court to a specific case the key though is that this court has always looked notice by extension i think the same is true here and it is the court pointed out dr sero chose this for it's there this is not the situation where a college chose the form sero chose a federal form to litigate a state law claim based on state law and subject to substantive stay off principles and here going back to the the difference between a waiver element of the waiver so in this case the college move for summary judgment damages limitations which are themselves jurisdictional but courts have a an obligation to ensure that each element of a waiver is met in order to establish a state law on and that's what really what it boils d down to is the substantive component of texas law it's in capsule it in this immunity from suit to bring the question as is the state creating an immunity creating an immunity that goes beyond what what existed at common law the answer that is no states not creating immunity the state is waiving immunity is subject to certain limitations and this court has always applied but limitations that the texas legislature has put on a waiver i like to briefly turn to the damages question on the procedural due process moment if there are no further questions on the of unity provision and good grades i think you hit the nail on the head in terms of pointing to what evidence supports the damages or mr or properly found that there was no evidence supporting an award of anything beyond nominal damages or procedural due process claim early in my colleague's presentation discussed the facts which the court is well familiar with and noted that the allegations against dr sarah were made public in august of twenty six team one month later she held the hearing was dr sarah's testimony was clear and unequivocal that her injury arose from those public allegations that that's what she felt at damage her she offered no testimony no evidence that connected the  determine hearing to any injury to any new injury and as a sport well knows under kerry versus ifas and its progeny it's dr sarah's burden to put on evidence that connects damages to the constitution for such evidence dr sero did and that's fatal to her client or so testimony was tied to the allegations that were lodged against her which were made public and so just grates to your earlier question about what does the record say and that's when she does the harm arose to for that reason the district court properly found that there was no evidence to support a mental anguish or war and that the only recoverable damages were nominal to meet the elements of a waiver of immunity and also to find just report correctly reviewed the evidence and determine that there was no evidence of oz ation supporting the damages award on the due process  what the same result hold in state court they have i think he has almost but not quite completely conceded that yes in state court the claim could be brought we've pointed the court to the case  damage st as trinity valley community college two thousand and fourteen decision from the texas supreme court that involves an employment contract by an employee of a community college and the supreme court holds that under this and seventy one there is a waiver of immunity from suit this is the kind of claim that can proceed to trial this is not the kind of claim that in texas state court would be shut down at the looked for example at immunity doctrines involving attorney misconduct or attorney why the lady the court has asked whether texas law has a substantive interest in stopping the litigation from even happening and under this controlling texas supreme court decision that is not the kind of interest texas is suggesting it exists in these employment contracts under chapter two hundred and seventy one turning briefly to the question of causation and damages  there's clearly disagreement when the two sides about how to frame this question one place the court could start is with the jury charge that was submitted which asked the jury about proximate cause there was no instruction given to the jury that it had to link damages to some specific period of time or that was limited in how it would assign damages and some of the cases that have been cited do you have language like that in the jury charge i imagine that if the courts of the district courts conditional grant to him on damages is carried out a new trial and damages in this case would include very specific instructions that the parties would know how to argue about to direct the jury but this jury dr answering this question had sufficient evidence to conclude that there was a contribution between the the misconduct here and the damages and i'd point out to the timeline to seize argument on this is a limb in a thing because what they're saying is that this constitutional interest is defeated by the making of the public accusations so they can say absolutely anything they want prior to the hearing the matter how hurtful and it doesn't matter if they give us official hearing there or not why a bill for that for what they've done for the depravation we think that is focusing on the wrong thing the hearing is not the violation that hearing allegations the reason we structured our testimony the way we did and we talk about it was to distinguish the arguable effects of the terminations which yes he did have a contractual right to do with or without costs from the accusations which we don't think they don't don't have a right to do and so that's why we focus our attention on the fact that some of the harm started before the hearing based on the accusations but we also have evidence that the harms continued for it for a period after this insufficient hearing in particular the mental anguish the duration evidence is that it was a year and a half where she was losing sleep and unable to sleep because of this we have evidence that extended well beyond this have evidence for dr sarah before the hearing that she was aware that she was about to be railroaded this was going to be a sham that was trying to affect how she felt and we have the evidence when she's talking about her finalist interview where she does mention that hearing so there is some connection and we recognize that it's not an enormous amount of evidence that on new trial there would be more specific evidence under likely a more specific jury question that's asked but we think this clears the bar to be