TEXAS DEPARTMENT OF TRANSPORTATION v. AER AEROTRON INC (2001)

The issue in this case involves whether the State may waive its immunity from suit by its conduct.   The court of appeals held that by accepting benefits under a contract the State waives its immunity from suit.  997 S.W.2d 687, 692.   We disagree.   Today in General Services Commission v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex.2001), we declined to adopt a waiver-by-conduct exception to sovereign immunity because the Legislature has established an administrative process for resolving certain breach-of-contract claims against the State.   See tex.Gov't Code § 2260.001-.108. Accordingly, we hold that Aer-Aerotron may not pursue its claim against the State without first participating in Chapter 2260's administrative process.   See Little-Tex Insulation Co., 39 S.W.3d at 595.   The trial court properly dismissed Aer-Aerotron's suit.   We therefore reverse the courts of appeals' judgment and dismiss Aer-Aerotron's claim for want of jurisdiction.

For the reasons expressed in my dissent in General Services Commission v. Little-Tex Insulation Company,¹ I respectfully dissent.

FOOTNOTES

1.   39 S.W.3d 591 (Tex.2001).

Justice BAKER delivered the opinion of the Court in which Chief Justice PHILLIPS, Justice HECHT, Justice OWEN, Justice ABBOTT, and Justice HANKINSON joined.

Justice ENOCH filed a dissenting opinion. Justice O'NEILL did not participate in the decision.