Sovereign immunity has recently become a hot topic in the legal and political spheres of Texas.
As Texas recovers from the 2021 severe winter storm that cost dozens of lives and left millions of people in the dark and without water, many are questioning who will be held accountable for the resulting damage of countless homes and businesses. This disaster has sparked a heated discussion around the Electric Reliability Council of Texas (ERCOT) and its role in the 34,000MW shortfall in power generation that resulted in a massive statewide power outage.
ERCOT is an organization that operates Texas’s electrical grid, the Texas Interconnection, which supplies power to more than 25 million customers and represents 90-percent of the state’s electric load. ERCOT is governed by a board of directors and subject to oversight by the Public Utility Commission of Texas (PUC) and the Texas Legislature.
What is Sovereign Immunity?
Sovereign immunity is a judicial doctrine that protects the government, its subdivisions, departments, and agencies from civil and criminal prosecution. In the United States, sovereign immunity typically applies to the federal and state governments, but not to municipalities.
Under this rule, the government must permit citizens to sue them.
Liability Under the Texas Tort Claims Act
Suppose your case involves the potential liability of a Texas government agency or employee. Under these circumstances, your claim must meet a unique set of criteria for a court to waive sovereign immunity.
Passed in 1969, the Texas Tort Claims Act partially waives sovereign immunity and grants permission to sue the state under specific, limited circumstances for wrongs committed by a “governmental unit” and its employees. A governmental unit includes almost any government agency or organization at either the state or a local level, such as “departments, bureaus, boards, commissions, offices, agencies, councils, and courts” of the state, plus “a political subdivision of this state, including any city, county, school district, the junior college district, levee improvement district, drainage district, irrigation district” (Section 101.021).
Under the Act, a “governmental unit” can be held liable for two classes of injuries:
Property damage, personal injury or death arising from a State employee’s use/operation of a motor vehicle while in the course and scope of his employment duties, and;
Personal injury or death caused by a condition or use of tangible personal or real property if and if the governmental entity would have been liable as a private individual.
Plaintiffs in these cases may seek damages if death or personal injury occurred but may not seek damages for harm to property.
What Notice is Required for a Texas Tort Claim?
The State of Texas is entitled to a “notice of claim” within 180 days of the incident occurring. Without proper notice, the plaintiff loses the right to pursue a lawsuit. The notice must also include the following information:
- Description of the damage,
- Injury suffered,
- Identity of the parties injured,
- The incident that led to the injury, and
- The time and place of the injury.
What is the Statute of Limitations on a Texas Tort Claim?
If proper notice was filed within 180 days of the incident, the plaintiff has up to two years after the incident to file suit. Failure to provide notice within 180 days throws out the case immediately.
ERCOT and Sovereign Immunity
As the controversy over ERCOT’s role in the statewide blackout intensifies, the company’s officials claim they have sovereign immunity and cannot be held liable in court. Despite not being an official government agency, previous courts have upheld ERCOT’s immunity on the basis that if it were found monetarily responsible, it would potentially bankrupt the system and leave Texas and its power grid without central management.
Whether or not ERCOT will face liability for its role in the power grid blackout hinges on the outcome of a separate case brought before the Texas Supreme Court in 2016.
A decision is expected by Summer 2021.