IN THE SUPREME COURT OF TEXAS

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No. 17-0409

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CHARLES J. HUGHES, PETITIONER,

v.

TOM GREEN COUNTY, RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

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JUSTICE BOYD, joined by JUSTICE LEHRMANN and JUSTICE BROWN, concurring in 

the judgment.

In an earlier probate proceeding, Charles Hughes and Tom Green County both 

claimed ownership of the same mineral interests. They ultimately settled those competing 

claims. Hughes now alleges the County breached that settlement agreement, and the Court 

holds that governmental immunity does not bar Hughes’s claim against the County for that 

breach. — S.W.3d —, —. I agree with that result, but not with the Court’s analysis, which 

misapprehends both governmental immunity and our holding in Reata Construction Corp. 

v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

I.

The Court holds that the County’s decision to intervene in the probate proceeding 

and assert an affirmative claim to the mineral interests “abrogated the County’s 
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governmental immunity as in Reata.” — S.W.3d at —. But Reata is irrelevant here because 

the claim Hughes asserted in the probate proceeding never implicated the County’s 

immunity at all. We held in Reata that when a governmental entity voluntarily engages in 

litigation and asserts an affirmative claim for money damages, immunity does not apply to 

the defendant’s counterclaims against the governmental entity if those counterclaims are 

“germane to, connected with, and properly defensive to” the governmental entity’s claims, 

to the extent the counterclaims serve only to offset the amount of the governmental entity’s 

recovery. 197 S.W.3d at 376–77. In the probate proceeding here, however, Hughes asserted 

a competing claim to the mineral interests, not a counterclaim against the County. 

The probate proceeding’s procedural background demonstrates why Reata has 

nothing to do with this case. Southern Methodist University initiated the in rem probate 

litigation seeking a judicial release of a will’s restriction on SMU’s use of the disputed 

mineral interests. At that time, of course, the lawsuit involved only SMU. The County 

promptly intervened and sought a declaration that the disputed mineral interests belonged 

to its local library. Almost two years later, Hughes intervened and sought a declaration 

that those interests belonged to him and the testator’s other heirs. Although three parties 

ultimately competed for the mineral interests, no one asserted any claim—much less a 

claim for money damages—against the County. The County did not seek dismissal of 

Hughes’s or SMU’s claims; it knew as well as anyone that those claims did not implicate 

the County’s governmental immunity. 
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If the County had filed a jurisdictional plea or motion to dismiss Hughes’s claim in 

the probate proceeding, the trial court would (or, at least, should) have denied the plea 

outright—not because Reata’s abrogation rule applied, but because immunity did not apply 

at all. Governmental immunity bar suits and claims against the state and its political 

subdivisions. Id. at 374; see also Nazari v. State, 561 S.W.3d 495, 500 (Tex. 2018) (“The 

common-law doctrine of sovereign immunity prohibits suits against the state unless the 

state consents and waives its immunity.”) (emphasis added). It does not bar claims that 

compete with a governmental entity’s claims to property held by another. Because Hughes 

never asserted claims against the County in the probate proceeding, we need not concern 

ourselves with whether the County voluntarily engaged in the litigation, whether Hughes’s 

claim to the mineral interests was germane, connected, and properly defensive to the 

County’s competing claim to the same interests, or whether Hughes’s claim would serve 

to offset the County’s recovery. Governmental immunity simply did not apply to Hughes’s 

claim, and Reata is irrelevant to that analysis.

For centuries, courts and commentators have agreed that sovereign immunity bars 

suits and claims that private parties initiate against the government. English law recognized 

that “no suit or action can be brought against the king, even in civil matters, because no 

court can have jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *242 

(emphasis added). Based on that tradition, the U.S. Supreme Court has long admonished 

that “the entire judicial power granted by the Constitution does not embrace authority to 
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entertain a suit brought by private parties against a state without consent given.” In re State 

of New York, 256 U.S. 490, 497 (1921) (emphasis added); see also Beers v. State, 61 U.S. 

(20 How.) 527, 529 (1857) (calling sovereign immunity “an established principle of 

jurisprudence in all civilized nations”). And this Court too, in refining its own body of 

immunity jurisprudence, has followed the same rule: a “suit against the State” is generally 

forbidden “without the consent of the Legislature.” Griffin v. Hawn, 341 S.W.2d 151, 152 

(Tex. 1960) (emphasis added); see Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 

S.W.3d 849, 853 (Tex. 2002) (virtually same). 

But immunity is not implicated just because the government is a party to a lawsuit. 

Courts must have jurisdiction over some cases in which the government is a party, or else 

the government could never initiate or intrude in litigation. See JOSEPH STORY, A FAMILIAR 

EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES § 332 (The Lawbook 

Exchange, Ltd. 1999) (1840) (explaining that article III, section 2 of the federal 

Constitution was meant to allow the government to sue to enforce its own rights and 

privileges); Emp’s of Dep’t of Pub. Health & Welfare v. Dep’t of Pub. Health & Welfare, 

411 U.S. 279, 317 (1973) (Brennan, J., dissenting) (highlighting the framers’ belief that a 

suit could be maintained “where the State is the plaintiff or an intervenor”); Kinnear v. 

Comm’n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam) (recognizing that 

the Commission’s immunity from suit was not at issue because “the Commission initiated 

this proceeding”). Here, the trial court had jurisdiction to resolve the County’s claim to the 
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mineral interests. Hughes’s competing claim asserting ownership of those same interests 

did not implicate governmental immunity because Hughes did not assert any claims against

the County.1 And when governmental immunity does not apply, it need not and cannot be 

“abrogated”—under Reata or any other theory. 

II.

In this proceeding, however, Hughes does assert a claim against the County, seeking 

damages for the County’s alleged breach of the parties’ agreement to settle their competing 

claims in the probate proceeding. Generally, governmental immunity bars a contract claim 

for damages against a governmental entity unless the legislature has waived that immunity. 

See Nazari, 561 S.W.3d at 500. A plurality of the Court recognized an exception to that 

general rule in Texas A & M University–Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002) 

(plurality op.). The plurality reasoned that “when a governmental entity is exposed to suit 

because of a waiver of immunity, it cannot nullify that waiver by settling the claim with an 

agreement on which it cannot be sued.” Id. at 521. In other words, “having waived 

immunity from suit in the Whistleblower Act, the State [could] not now claim immunity 

from a suit brought to enforce a settlement agreement reached to dispose of a claim brought 

under that Act.” Id. at 522–23. A claim seeking “enforcement of a settlement of a liability 

for which immunity is waived [is not] barred by immunity.” Id. at 521.

 1 Cf. Hughes v. Tom Green Cty., 553 S.W.3d 1, 6 (Tex. App.—Austin 2017) (mem. op.) (clarifying that 

although “Hughes and the County had ‘competing claims’ for” the disputed interests, “they did not seek relief from 

each other”) (emphasis added); see also id. (“In fact, the record reflects that Hughes and the County did not assert any 

claims against each other in the [probate proceeding].”) (emphasis added).
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This case differs from Lawson in that Hughes is not suing for breach of an agreement 

settling claims for which the legislature had waived the County’s immunity. Hughes had 

no need to argue waiver in the probate proceeding because he asserted no claims against 

the County, so governmental immunity did not apply at all. But the plurality’s holding in 

Lawson was not limited to situations in which immunity was waived: “If a government 

entity agrees to settle a lawsuit from which it is not immune, [it 

cannot] claim immunity from suit for breach of the settlement agreement.” Id. at 518 

(emphasis added). Here, the County agreed to settle Hughes’s competing claim in the 

probate proceeding, and immunity did not bar that claim. Under Lawson, immunity does 

not bar Hughes’s claim for breach of that agreement.

III.

Governmental immunity does not bar Hughes’s claim for the County’s alleged 

breach of the parties’ settlement agreement because immunity did not bar the claim the 

parties settled. But Reata has nothing to do with that conclusion. I respectfully disagree 

with the Court’s reasoning, but I concur in its judgment.

_____________________

Jeffrey S. Boyd

Justice

Opinion delivered: March 8, 2019